CANADIAN CRIMINAL JUSTICE
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CANADIAN CRIMINAL JUSTICE
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CURT T. GRIFFITHS
SIMON FRASER UNIVERSITY
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NELSON
NELSON
Canadian Criminal Justice, Sixth Edition
by Curt T. Griffiths
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Library and Archives Canada
Cataloguing in Publication
Griffiths, Curt T. (Curt Taylor),
1948-, author
Canadian criminal justice:
a primer/Curt T. Griffiths,
Simon Fraser University.- Sixth
edition.
First edition written by Alison
J. Cunningham . Includes
bibliographical references
and index. Issued in print and
electronic formats.
ISBN 978-0-17-672440-5
(softcover).-ISBN 978-0-17-685383-9
(PDF)
1. Crim inal justice, Administration
of-Canada- Textbooks .
2. Textbooks. I. Cunningham, Alison
J., 1959- . Canadian criminal.
II. Title.
HV9960.C2G75 2018 364.971
(2018-900512-2
(2018-900513-0
ISBN-13: 978-0-17-672440-5
ISBN-10: 0-17-672440-0
To Sandra, my partner on the journey of radical amazement,
and
to the Bradys and their adventures,
past, present, and future.
About the Author
Curt Taylor Griffiths (Ph.D., Sociology, University of Montana) is a Professor in the
School of Criminology and Coordinator of the Police Studies Program at Simon
Fraser University in Vancouver. Among his primary areas of teaching and research are
policing, corrections, comparative criminal justice, legal reform and capacity-building,
enhancing the effectiveness of international development initiatives, and the dynamics
of community justice.
Professor Griffiths has been a Visiting Expert at the United
ations Far East Institute
for the Prevention of Crime and Treatment of Offenders (U AFEI), Tokyo, Japan, and
a Visiting Fellow at the American University in Ca iro and at Tokiwa University, Mito,
Ibaraki, Japan. He has conducted research and evaluations and worked with justice
agencies and community organizations in a variety of jurisdictions, including Egypt,
Japan, Dominica, the etherlands, and Latvia, as well as in the remote Canadian north.
Professor Griffiths is the author or co-author of more than 100 research reports
and articles and of several college/university-level texts, including Canadian Criminal
Justice: A Primer, Canadian Police Work, and Canadian Corrections (with Danielle
Murdoch). He is a member of the editorial boards of The Intemational Review of
Victimology, Intemational Criminal Justice Review, and Police Practice and Research:
An Intemational Joumal.
Brief Contents
NEL
Preface
xiv
A Unique Learning Framework
xviii
Acknowledgements
xx
A Note to Instructors
xxi
PART I
CANADIAN CRIMINAL JUSTICE: SETTING THE FRAMEWORK . . . .. ... 2
CHAPTER 1
The Foundations of Criminal Justice .. ........ ....... .. . .. ....... 4
CHAPTER 2
Understanding the Criminal Justice System .. ....... ... . . .. ... .... 21
CHAPTER 3
Considerations in the Study of Criminal Justice . .... . .... ...... .... . 42
PART II
THE POLICE . ........ . ...... .. .. ..... ...... ...... .. .... .. .66
CHAPTER 4
The Structure and Roles of the Police ... . .. . .... ....... .... ..... 68
CHAPTER 5
Police Powers and Decision-Making ............ . . ........ ..... . 101
CHAPTER 6
Police Strategies, Operations, and Engagement . ..... . .. ..... ..... 132
PART Ill
THE CRIMINAL COURTS ........ .. .. ..... .......... ..... . . . 164
CHAPTER 7
The Structure and Operation of the Criminal Courts .. .... ..... .... . 166
CHAPTER 8
The Prosecution of Criminal Cases ..... . .... . ... .. ......... . ... 200
CHAPTER 9
Sentencing ..... . .. ..... ........ .. . . ...... .. . ...... ...... 248
PART IV
CORRECTIONS . .. . . . ...... . . . ......... .... ....... .... . .. 284
CHAPTER 10
Corrections in the Community: Alternatives to Confinement ...... .... . 286
CHAPTER 11
Correctional Institutions . . . . . . .... ...... . .. .. ......... . ...... 312
CHAPTER 12
Release, Re-entry, and Reintegration ......... . ................. 359
PARTV
YOUTH JUSTICE ..... . . ..... . . ... ....... ....... .. . .. ..... 400
CHAPTER 13
The Youth Justice System ........ .. .. . . ........... . .. . . .. ... 402
PART VI
RECONSIDERING CRIMINAL JUSTICE . ...... . . ......... .. . . . .. 436
CHAPTER 14
Going Forward: Challenges to and Opportunities for
Criminal Justice Reform .............. .. . . .. .. . ....... ...... 438
Glossary
454
Index
460
vii
Table of Contents
Preface
xiv
The Criminal Law in a Diverse Society .... 16
Is the Criminal Justice System Effective? .. 32
A Unique Learning Framework
xviii
Summary .. . . . . ......... . .. . ...... 17
Are the Criminal Law and the Criminal Justice
System a Deterrent? ...... ......... .. .33
Acknowledgements
A Note to Instructors
Key Points Review ................... 18
xx
xxi
PART I CANADIAN CRIMINAL
JUSTICE: SETTING
THE FRAMEWORK ....... . 2
CHAPTER 1: The Foundations
of Criminal Justice .... . 4
Thinking Critically about the Criminal Justice
System ... .. ......... . . ...... .... 5
Key Term Questions .......... . . . .... 18
Evidence-Based Policies and Programs .... .34
Critical Thinking Exercise . .. . .... . . .... 19
Restorative Justice: An Alternative
Approach to Criminal Justice . .. . . .... 34
Class/Group Discussion Exercise ........ 19
Media Link ........................ 19
References . . . . . . . . . . . . . . . . . . . . . . . . 20
Entry Points for Restorative Justice
in the Criminal Justice System ...... .... .36
Summary ......................... 36
CHAPTER 2: Understanding the Criminal
Justice System ........ 21
Key Points Review ....... . ........ . . . 37
The Criminal Justice System ........... 22
Critical Thinking Exercise ..... . . . ...... 38
Class/Group Discussion Exercise ........ 38
Media Links ..... ........... ....... 40
The Purpose of the Criminal Justice System . .. 22
Whatls Critical Thinking? ... .......... .. .5
The Role and Responsibilities of Governments
in Criminal Justice . ........... ...... .. 22
What Is a Crime
and Why? ........... . . ... . ....... 6
Is the Criminal Justice System a "System"? .. .23
Key Term Questions .............. .. . 37
References . .. . . ......... . .... . .... 40
CHAPTER 3: Considerations in the Study
of Criminal Justice .. ... 42
Whatls a Crime? .. . .................. .6
Models of Criminal Justice Administration:
Due Process versus Crime Control. . . . . 23
The Social Construction of Crime .......... 7
An Adversarial System of Criminal Justice . .. 23
The Origins and Application of the
Criminal Law . ........................ 9
The Flow of Cases through the Criminal
Justice System . . . . . . . . . . . . . . . . . . . 25
Racism, Prejudice, and Discrimination . .... .44
The Types of Canadian Law . .... . . . . ... 10
The Canadian Legal System . . . . . . . . . . . 10
The Dynamics of Criminal Justice ....... 27
Racialized Persons, Racialization, and
Racial Profiling. ...... ..... ........... 45
Inequality. ......................... .43
The Role of Discretion in the
Criminal Justice System ... ............ .27
The Experiences of Women .... .. . . .... 47
The Sources of Criminal Law ........... .11
The Task Environments of Criminal Justice ... 28
The Experiences of Indigenous Persons ... 47
The Principles of Canadian Law .... . . .... 12
Ethics in Criminal Justice . . ............. 28
The Rule of Law .................... .12
Accountability in the Criminal Justice System . .. 29
Indigenous Persons in Canadian Society:
The Legacy of Colonization. .
. .... 48
The Canadian Charter of Rights
and Freedoms ................ . .. . ... 14
Public Confidence and Trust in the
Criminal Justice System ............... .30
The Criminal Code of Canada (1892) ...... 15
The Politics of Criminal Justice: The Agenda
of the Federal Conservative Government
(2006-15) . ..... ..... ........ . .. . ... 32
The Criminal Law. .................... 11
Criminal Law and Civil Law: Whats the
Difference? ....... .. . . ............. .15
viii
Multiculturalism and Diversity in Canada ... 43
The Experiences of Indigenous Women . . . . .50
Sexual Minorities ................... 50
LGBTO Youth ........ . . ..... ...... .. .51
The Experiences of Muslims .... . . . .... 51
Muslim Experiences in Quebec ....... . .. .52
NEL
Defining Features of the Police Role ... . .. 74
The Experience of Women Police Officers ... 93
The Black Experience Project . ......... .. 53
The Ever-Expanding Police Role . ......... 74
Summary . . . . . . . . . . . . . . . . . . . . . . . . . 94
Additional Considerations . . . . . . . . . . . . . 53
The Impact of Legislation and
Court Decisions .... ...... ........... .75
Key Points Review ... ...• ... .. ... .... 95
Core Policing in the Early 21st Century ... 76
Critical Thinking Exercise . . . ..... ...... 96
Policing a Diverse Society. ......... . .... 76
Class/Group Discussion Exercise . . . . . . . . 96
The Experiences of Blacks .. ... .... . .. . 52
The Escalating Costs of the Criminal
Justice System ..... . ............... .53
The Changing Boundaries of Criminal Justice
Agencies ... ..... . .......... . ...... .54
Key Term Questions ..... ....... . .. . . 95
A Brief History of Policing . ..... .. . .... 78
Media Links ...... .......... ... .... 97
References . . . . . . . . . . . . . . . . . . . . . . . . 97
Addressing the Needs of Crime Victims . . ... 56
The Evolution of Policing in Canada ...... 78
Canadian Policing: A Profile ............ 80
The Health and Wellness of Offenders
and Criminal Justice Professionals .... .... 56
The Structure of Contemporary
Canadian Policing . . . . . . . . . . . . . . . . . 80
CHAPTER 5: Police Powers and
Decision-Making .. . . . 101
The Lack of the Diversity among Criminal
Justice Professionals . .. .. ............ .57
Federal Police: The Royal Canadian
Mounted Police .. ... ............... . .81
The Charter of Rights and Freedoms
and Police Powers .... .. . .. ..... . 102
Summary .. ... . ... .. ..... . ....... . 57
Key Points Review . ... ... . ... ........ 57
ProwncialPolice. ... ................. .82
Police Accountability ... . . .. ... ...... 104
The Rise of the Surveillance Society . . . . . . .55
Key Term Questions .. .. ......• ...... 58
Critical Thinking Exercise . ... ... ..• . . . . 58
Regional Police Services .... .. . . ..... . .82
Police Ethics .. ....... ....... . ...... 105
Municipal Police ..... . .... . .......... 82
Police Discretion and Decision-Making .. . 105
Indigenous Police . . . . ....... . ...... .. .83
The Exercise of Discretion . . . . . . . . . . . . .106
Class/Group Discussion Exercise . . . . . . . . 59
Police Organizations ..........•. . .... 84
Typifications and Recipes for Action ...... 106
Media Links . . . . . . . . . . . . . . . . . . . . . . . 59
Private Security Services . .. . ... . ..... . 84
Biased Policing and Racial Profiling. . ... .. 106
Police Peacekeeping ..... . ...... ... . . 85
The Police Response .............• . . . 85
Racial Profiling versus Criminal Profiling . . .107
Street Checks and Carding . ... . ... . ... .108
The Recruitment and Training of
Police Officers . . . . . . . . . . . . . . . . . . . 86
Studies of Biased Policing and
Racial Profiling. ................ . .... 109
Police Recruitment . .. ..... ........ . .. .86
Police Policies on Racial Profiling and
Street Checks/Carding ...... .. ....... .110
References . . . . . . . . . . . . . . . . . . . . • . . . 60
PART II THE POLICE . .... .... . ... 66
CHAPTER 4: The Structure and Roles
of the Police . .... ... . 68
Defining Police Work .. ... . .. ... . . . . .. 69
The Legislative Framework of Police Work . . . 70
Perspectives on the Role of the Police .... 70
The Social Contract Perspective ......... .70
The Radical Perspective .......... . .... .70
Police Work in a Democratic Society . . . . . 72
Governance and Oversight of the Police ... 73
NEL
Increasing Officer Diversity in Police
Services ....... .. ...... ... ......... 87
Police Training . . . ...... .. . .. ........ .88
Police Treatment of Indigenous Persons . . 111
The Police Use of Force .. . .. ........ 111
The Police Occupation ... . .. ..... . ... . 90
The Force Options Framework . ..... ... .112
The Working Personality of Police Officers . .. 90
Decision-Making and Force Options ... .. .113
Challenges in Police Work ..... . ....... 91
Less-Lethal Force Options ....... ... ... 113
Occupational Stress Injuries . ......... ... 91
Deadly Encounters: The Police Use
of Lethal Force ....... ... ........... 114
Table of Contents
ix
The Use of Force and Persons with
Mentallllness (PwM0 . ..... . ........ . .115
Police Powers in Investigations .... .... 117
Entrapment: A Misuse of Police Powers . .. 117
The "Mr. Big" Technique: A Controversial
Investigative Strategy . . .. ... . .. ....... 117
Search and Seizure . . ...........•. . .. 118
The Power to Detain and Arrest . . .... . .. 120
The Right of Suspects to Remain Silent. ... 123
Problem-Oriented Policing (POP). .. ...... 147
The Challenges of Mega-trials .. ..... . . 193
Crime Attack Strategies .......... .... 148
Summary . ..... .. .. ... .. ... ..•. . . 194
Tactical-Directed Patrol . ........... . .. 148
Key Points Review . .. . .. ... ... .. .... 194
Targeting High-Risk Offenders ... . . .... .148
Key Term Questions . .. .. .... . .. .. . . 195
The Police and Vulnerable/At-Risk
Groups ..... . . .. ..... . . ...... .. 150
Responding to Persons with Mental Illness .. 150
The Police Treatment of Indigenous,
Vulnerable, and Marginalized Women . . ... 152
Police Officer Misconduct . ... . .. . . .. . 124
The Police and the LGBTQ Community ... .156
Complaints Against the Police. . . ... ... . .124
Summary . .... .. . ..... .. . ..... . . . 157
The Reluctance to File a Complaint . ..... .126
Key Points Review ... ............ . . . 158
Summary .. .... . ..... ..... . .. ... . 126
Key Term Questions . . ..... . .. . . .... 159
Key Points Review .. . ... .. . . ... .. ... 127
Critical Thinking Exercise .. . . ...... . .. 159
Key Term Questions .... .... ... . . . .. 128
Class/Group Discussion Exercise ... . .. . 159
Critical Thinking Exercise .. .. .... .. . . . 128
Media Links ......... .. .. . .. .. . . . . 160
Media Links . .......... ....... .. .. 128
References . . . . . . . . . . . . . . . . . . . . . . . 160
References . . . . . . . . . . . . . . . . . . . . . . . 129
CHAPTER 6: Police Strategies, Operations,
and Engagement. .. . .. 132
Measuring the Effectiveness of Police
Strategies and Operations . . . . . . . . . . 133
PART Ill THE CRIMINAL COURTS . . 164
CHAPTER 7: The Structure and Operation
of the Criminal Courts . . 166
The Criminal Courts in Canada .. ...... 167
Critical Thinking Exercise ....... . .. .. . 195
Class/Group Discussion Exercise . . . . . . . 196
Media Links . . . . . . . . . . . . . . . . . . . . . . 196
References . . . . . . . . . . . . . . . . . . . . . . . 196
CHAPTER 8: The Prosecution of
Criminal Cases .. ... . 200
The Flow of Cases through the
Court System . . . . . . . . . . . . . . . . . . . 202
Summary Offences or Proceeding
Summarily . .... . ......... . ..... .. .. 202
Electable Offences . . ...... .. . .. ..... .203
The Pre-trial Process . . . . .... . ... ... 203
Laying an Information and Laying
a Charge . ... ... ........... . .. . .. .. 204
Compelling the Appearance of the
Accused in Court . . . . . . . . . . . . . . . . . . . .204
Release by the Police .... ............ .206
The Decision to Lay a Charge ......... . .206
Judicial Interim Release (Bailj ... . ... . .. .207
Crime Rates and Clearance Rates . ....... 133
The Provincial/Territorial Court System ... 168
Crime Displacement. ................. 134
Additional Measures of Police Effectiveness .. 134
Provincial and Territorial Specialized
Problem-Solving Courts ......... .. . 171
Security Certificates ................. .211
The Professional Model of Policing .. .. .. 134
The Effectiveness of Specialized Courts. . . .173
Defendants' Access to Legal
Representation ..... .. ....... . .. . 212
Community Policing .. ..... ... . ..... 135
Indigenous Courts ....... ............ 173
Defining Community Policing ......... . .135
Provincial/Territorial Circuit Courts . ..... 176
Community-Based Strategic Policing . .... .136
The Provincial/Territorial Superior Courts . 177
The Supreme Court of Canada . ....... 179
The Police and the Community ........ 138
Public Attitudes toward and Confidence
in the Police . . . . . . . . . . . . . . . . . . . . . . .138
The Courtroom Workgroup . .......... 181
The Police and Restorative Justice
Approaches . ........ . .. .. ........ . .139
Justices of the Peace. . . . . . . . . . . . . . . . .181
The Challenges in Developing and Sustaining
Police-Community Partnerships . .. .. .. .. 140
Outy Counsel . ...... ... . .... ........ 182
Anonymous and Creep Catchers:
Guardians of Justice or Vigilantes? . . . .... 140
Other Courtroom Personnel . .. ......... 184
Crime Prevention ....... . ... ....... 142
Defence Lawyers . ... ...... .. . ... . ... 182
Crown Counsel .... ... .. . ........... 183
Features of the Courtroom Workgroup . .... 184
Legal Aid for the Accused. . ...... .. .... 21 3
Fitness to Stand Trial. ..... . .... .... . 214
Assignment and Plea . .... . . . . . .. .. . 214
Plea Bargaining . .. ....... . ....... . 215
Access to the Courtroom .. . ....... . . . 216
Mode of Trial: Trial by Judge Alone
or by Judge and Jury .... . ... . .... 217
Disclosure of Evidence . ..... ... . .... 219
The Trial . .. . ..... . . ... . ...• . • .... 219
The Case for the Crown .... . . .. . .... 220
The Case for the Defence ..... .. . .... 221
Where Do Judges Come From? .... . .. . 185
The "You 've Got the Wrong Person •
Defence . . . . . . . . . . . . . . . . . . . . . . . . . .222
Secondary Crime Prevention Programs . ... 143
Diversity (or the Lack Thereo~ in
the Judiciary . . . . . . . . . . . . . . . . . . . . . . .186
Crime Prevention in Indigenous
Communities . ... . .... . ..... . ....... 145
The Mental State of the Accused at the
Time of the Alleged Offence . . . ......... 223
Judicial Ethics and Accountability ... .. .. 187
Justifications: Excuse-Based Defences .... 225
Primary Crime Prevention Programs ... ... 142
Challenges in Crime Prevention ..... .... 146
Crime Response Strategies ..... . .. . .. 146
The Broken Windows Approach . ........ 146
Zero-Tolerance Policing and Quality-of-Life
Policing . ... .. ...... . .... '. . ... ... . .147
X
The Judge .. ... .... . .. ............ .181
Pre-trial Remand . .................. .210
Table of Contents
Public Complaints about Judges . .... . .. .188
Case Delay in the Courts. . . . . . . . . . . . . 190
The Sources of Case Delay. . . . .
Procedural Defences . . .
. ..... 228
The Jury .. ... ... . . . ....... ... . ... 228
. .190
Appeals . . . . . . . . . . . . . . . . . . . . . . . . . 230
Addressing Case Delay: The
R. V. Jordan Decision ..... ... ......... 191
Crime Victims and the Court Process ... . 231
sec
Compensation for Crime Victims . ...... . .232
NEL
Victim Impact Statements . . .. .... . ..... 268
Accommodating Diversity in the
Courtroom . . . . . . . . . . . . . . . . . . . . . 232
Community Impact Statements (CISs) .. . . .269
Wrongful Convictions . . . . . . . . . . . . . . . 232
Public Perceptions of Sentencing ..... . . 270
The Role of the Police ... . ......... . .. 234
Restorative Approaches and Sentencing . . 270
The Role of Crown Counsel . . .......... 234
Circle Sentencing . ................... 270
The Role of Expert Witnesses . . . . . . . . . .. 235
The Politics of Sentencing . ... . ... .. .. 271
The Effectiveness of Sentencing .. ..... 273
Restorative Justice Approaches . . . . . . . . 237
The Ottawa Restorative Justice
Program . ....... .. ... . ........... .237
You Be the Judge ... . ..... ... . ... .. 27 4
The Application of RNR to Probation Practice:
The Strategic Training Initiative in Community
Supervision (ST/CS) . . . . . . . . . . . . . . . . .. 299
Intensive Supervision Probation ... . .. .. 300
The Experience of Probationers . . . . . . . . 300
The Challenge of Probation Practice . . . . 301
Occupational Stress . . ..... . .... .. .... 301
Supervising High-Risk and High-Need
Probationers ... .. . . .. . . .. .. . .... .. .301
Summary .. .. . ... . ........... . ... 238
A Judge Deliberates on a Sentence:
The Case of R. v. Burgess . . ...... . . 275
Key Points Review. . . . . . . . . . . . . . . . . . 238
Victim Impact Statements .. .. . . . . ... .. .275
A Lack of Probation Officer-Offender
Contact and Intervention .. ... . .... ... .302
Key Term Questions ... . .... . ....... 239
Critical Thinking Exercise .. . .. . ... •.. . 239
Vanessa Burgess's Background and
Circumstances . ....... .... ....... ... 275
Probation Services in Remote and
Northern Regions. . . . . . . . . . . . . . . . . . . .303
Class/Group Discussion Exercise . .. ... . 240
Aggravating Factors . .. ..... . .. . . . . . .. 276
Supervising a Diverse Clientele ... . . .. . .. 303
Media Links . ... . .... ... .. ... . .. .. 240
Mitigating Factors .. . ........... . .. . .276
References . . . . . . . . . . . . . . . . . . . . . . . 241
Summary ......... . . . . ... . .. .... . 277
The Need for Reform: Findings from
Ontario and British Columbia . . .. .. . . 303
CHAPTER 9: Sentencing . . ... . .. . 246
The Purpose and Principles of
Sentencing ...... .. . . ........ ... 247
The Goals of Sentencing: The Cases
of Mr. Smith and Mr. Jones .. .. .. ... 247
Utilitarian Goals . . . . . . . . . . . . . . . . . . . . .247
Key Points Review . ...... .. .. .... . . . 277
Key Term Questions ... .. ..... ... .. . 278
Critical Thinking Exercises ... .... .... . 278
Class/Group Discussion Exercise . . . . . . . 280
Media Link ...... . .. . .. .. ....... . . 281
References . . ... . ....... .. . ..... .. 281
Retributive Goals . . . . ........... . ... .248
Restorative Goals . .. ..... . ... ........ 248
Heavy Workloads and High Caseloads . .... 302
Surveillance in the Community: The Use
of Electronic Monitoring (EM) and GPS
Tracking ...... . .. . ....... .... .. 304
The Effectiveness of Alternatives
to Confinement. .... .... ... .... . . 305
Summary . . . . . . . . . . . . . . . . . . . . . . . . 307
Key Points Review ......... . .. . . ... . 307
Key Term Questions .... .. . .... .. . . . 308
PART IV CORRECTIONS ......... 284
Critical Thinking Exercise ....... ..... . 308
Media Links ............ ..... ..... 309
Victim Fine Surcharge (VFS) . . . .. . . ... .. 251
CHAPTER 10: Corrections in the
Community: Alternatives
to Confinement . .. . . 286
Additional Sentencing Options ......... 252
Absolute and Conditional Discharges . . . . 288
Judicial Determination .. . .. .... ....... 252
What Sentences Did Mr. Smith and
Mr. Jones Receive? ... ..... ........ . .248
Sentencing Options .. .. ......... . . . . 249
Class/Group Discussion Exercise .. . .... 309
References . . . . . . . . . . . . . . . . . . . . . . . 309
CHAPTER 11 : Correctional
Institutions . . .. . .... 312
Judicial Restraint Order ............... 252
Suspended Sentence . . . . . . . . . . . . . . . 289
Fines . .. . .. .. .... .... . .. .. ...... 289
Life Imprisonment . .. ...... .... .. . . .. 252
Diversion Programs. . . . . . . . . . . . . . . . . 289
The Creation of the Canadian
Penitentiary . .. . . .... . ........ .. 314
Sentencing Considerations . . . . . . . . . . . 253
Victim-Offender Mediation . ... . . . .... . .290
Local Jails and Provincial Prisons .. .... 315
Extraordinary Measures: Dangerous
and Long-Term Offenders .. ... . . .. . 254
The Issue of Net-Widening . .. . .. .. . . ... 291
Federal Corrections . . . . . . . . . . . . . . . . . 316
Conditional Sentences. . . . . . . . . . . . . . . 291
Provincial and Territorial Corrections . . . . 316
Dangerous Offender (DO) Designation . . .. .254
Probation . . . . . . . . . . . . . . . . . . . . . . . . 292
Long-Term Offender (LTD) Designation .... 256
Probation and Conditional Sentences:
What's the Difference?. . . ........... .. 293
Facilities Operated by Non-profit
Organizations . .. ......... . ...... 316
The Use of Incarceration .......... . .. 317
Sentencing in a Diverse Society . .... . . . 257
Sentencing Indigenous Offenders . ...... 258
Indigenous Traditional Punishments .. .... 261
Sentencing and Race ...... . .. . ... .. 262
How Do Judges Decide? ......... . ... 263
Recruitment and Training of Probation
Officers . . . . . . . . . . . . . . . . . . . . ....... 294
Judicial Discretion ........ ... ..... ... 263
Role and Responsibilities of Probation
Officers . . . . . . . . . . . . . . . . . . . . . . . . . . .295
Statutory Guidance .... . . .... ...... .. 265
The Dual Role of Probation Officers .... .. 297
Maximum Sentences . . .. . .. . . . ... . . . .265
Collaboration with Other Agencies. ... ... .298
Limits on Judicial Discretion. . . . . . . . . . . .266
The Risk, Need, and Responsivity Model
in Probation . . . . . . . . . . . . . . . . . . . . 298
Sentencing and Crime Victims ... . .. .. . 267
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Probation versus Parole: What's the
Difference? ....... .. ......... . ..... 293
Types of Correctional Institutions . .. ... . 317
The Challenges of Managing Correctional
Institutions .... . . .. .. . . .... . .... 318
Meeting the Requirements of Law, Policy,
and Legislation ... . . ................ 318
The Prison as a Total Institution . . . . . . . . .318
The "Split Personality" of Corrections ..... 318
The Impact of Legislation and
Political Agenda . . .. . . . ...... .. . . . ... 319
Conditions in Correctional Institutions ... .. 319
Table of Contents
xi
The Changing Offender Profile . . ... . . .. .319
Overcrowding in Correctional Institutions . .. 323
Preventing Disorder and Disturbances. . ... 324
Ensuring Inmate Safety . ........... .. .325
Inmate Health and Infectious Diseases . . . .326
The Use of Segregation . .. .. ........ . 327
The Controversy over and Reform
of Solitary Confinement ........... . .. .328
The Incident at the Kingston Prison for Women
(P4W): A Watershed Event in Women'.s
Corrections ........... . . .. .. . ..... .330
Working Inside: The Experience of
Correctional Officers . . . . . . . . . . . . . . 330
Summary . .. . .... ... . ........... . 393
Key Points Review . ... . . . . ... . . .. ... 393
Key Term Questions ........ ... . .... 394
The Parole Process . . . . . . . . . . . . . . . . . 362
Critical Thinking Exercise . ..... . ...... 394
The Changing Face of Conditional Release . .364
Class/Group Discussion Exercise . ..... . 395
Parole Board Grant Rates . .. .. . . . ...... 364
Media Links . . . . . . . . . . . . . . . . . . . . . . 395
Victims and Conditional Release ... . . .. 366
References . . . . . . . . . . . . . . . . . . . . . . . 397
Parole Board Decision-Making ... .. .... 368
Inmate Applicants and the Parole
Hearing . . . ........ ... ... ....... ... 369
PART V YOUTH JUSTICE . ....... 400
The Dynamics of Parole Board
Decision-Making ... .. . . ............ .370
CHAPTER 13: The Youth Justice
System ........... 402
Relationships with Inmates ........... . .332
Issues in Parole Board Decision-Making . . .371
The Risk and Needs of Youth . ..... .. .. 404
Corrections Officer Abuse of Authority. . . . .333
Is Parole Board Decision-Making
Effective? . . . . . . . . . . . .
Programs for At-Risk Youth . .. . .. . .... 405
Differences between the Adult and
Youth Criminal Justice Systems .. .... 406
Relationships with the Administration
and Treatment Staff . ............ . .. .. 333
Stressors for Correctional Officers. . . . . . . .334
Doing Time: The World of the Inmate . ... 334
Entering the Prison . .. . . ........ .. . .. 334
Living Inside ....... . .. .. . .... •• . . .. 335
. .. .. 373
The Reintegration Process. . . . . . . . . . . . 373
Coming Back: The Challenges of Re-entry
and Reintegration ....... . ... .. ... 375
The Challenges of Newly Released
Offenders . .. . .......... .. .. ... . ... 376
. .336
Strangers in a Strange Land: The Isolation
of Offenders Returning to the Community . .377
The Experience of LGTBQ and
Transgendered Inmates . . . . .....••... .338
Women Offenders and Reintegration . ... . .379
The Inmate Social System. .
Inmate Families . .... .. . .. . . ......... 338
Inmate Grievances and Complaints . . .. .. .338
Does Incarceration Work? .. ....... ... 339
Classification and Treatment . . . . . . . . . . 339
Gase Management.. ....... . ........ .340
Institutional Treatment Programs . ...... . .341
Women Offenders and Treatment .. ..... .342
The Principles of Effective Correctional
Treatment . . .......... . . . .......... 343
Restorative Justice in Correctional
Institutions . . .......... .. . . .. . .. . ... 343
Indigenous Healing Centres and Lodges ... 343
Treatment Programs for Indigenous Inmates . .344
Measuring the Effectiveness of
Correctional Treatment . . . . . . . . . . . . 345
Does Correctional Treatment Work? . . . . . 346
Summary . . . .. ..... ...... . ... .. .. 347
Key Points Review ... .. . ... . . .. . . . . . 347
Key Term Questions . .. .... . .. ..... . 348
Critical Thinking Exercise . . .... .... .. . 349
Class/Group Discussion Exercise . . .... . 350
Media Links ... . . . . ... ... . .. ... . .. 350
References . . . . . . . . . . . . . . . . . . . . . . . 352
L_
The Purpose and Principles of Conditional
Release . . . . . . . . . . . . . . . . . . . . . . . 360
The Release Options for Federal and
Provincial/Territorial Inmates .... . . .. 361
Decisions and Outcomes: One Man's
Journey through the Criminal
Justice System . . . . . . . . . . . . . . . . . . 390
The Authority of Correctional Officers ..... 331
Recruitment and Training ....... . .... .. 331
xii
CHAPTER 12: Release, Re-entry,
and Reintegration ... 359
Table of Contents
Indigenous Offenders and Reintegration ... 379
High-Risk and Special-Needs Offenders
on Conditional Release .. . ....... . . 380
High-Risk Offenders . ................. 381
Persons with Mental Illness ... .. .. ... .. 381
Sex Offenders . . . . . . . . . . . . . . . . . . . . . .381
The State-Raised Offender and Re-entry . .. 382
Parole Officers and the Supervision of
Offenders . . . . . . . . . . . . . . . . . . . . . . 383
The Youth Justice System . . ... . ...... 407
Keeping Youth Out of the Formal Youth
Justice System: Extrajudicial Measures
and Extrajudicial Sanctions . .. . ... .. ... .407
Extrajudicial Measures (EJM) .... ... ... .408
Extrajudicial Sanctions (EJS) . . .... .. . .. .409
Specialized Youth Courts . . . . .
. . .41 0
Community Involvement in the Youth Justice
System: Youth Justice Committees
and Youth Justice Conferences . . . . . . 41 0
Youth Court . . . . . . . . . . . . . . . . . . . . . . 411
The Role of Justices of the Peace (JPs) . .. .411
Judiciallnterim Release (Bai0 . . . . ...... 411
Youth Court Cases . . . . . . . . . . ........ 412
LGBTO Youth . .. .......... .. . . •. . .. .412
Indigenous Youth ....•••••. . ... . . . .. .413
The Dual Function of Parole Supervision . . .383
Black Youth . . . . . . . . . . . . . . . . . . . , . . . .413
Additional Provisions for Supervision . . . . . .383
Sentencing Young Offenders . . . . . . . . . . 414
Facilities and Programs for Offenders
on Conditional Release . . . . . . . . . . . . 384
Non-custodial Sentencing Options ....... 415
Non-profit Organizations and Offender
Reintegration . . . .. .. . . . . ............ 384
Making it or Going Back: Factors in the
Success or Failure of Offenders on
Release . . . . . . . . . . . . . . . . . . . . . . . 385
Suspension and Revocation of Conditional
Release . ............. . ......... . . .386
Youth Probation . ............. .. .. . . .416
Custodial Sentencing Options . ..... ..... 416
Youth in Custody .. . ... .. . ... . ...... 418
Indigenous Youth in Custody . .......... .418
Doing Time in Youth Custody Facilities .... 419
The Use of Solitary Confinement. ....... .420
Treatment Programs for Youth in Custody . .420
Youth-Staff Relationships . . .
. .. .. .. .. 421
Circles of Support and Accountability (COSAs):
A Restorative, Reintegrative Program
for High-Risk Sex Offenders . .. . . . . . 387
The Role of Parents in the Youth Justice
Process . ...... . . ......... . ... . 422
The Effectiveness of Community
Supervision Strategies .. .. .. .. . ... . 389
Restorative Justice Programs for Youth
Offenders ... ....... .. . .. . ... ... 422
NEL
Aftercare Programs ................. .424
Developing and Implementing
Evidence-Based Legislation, Policies,
and Programs ...................... 439
The Role of Informal Social Support
Networks . ... .. ........ .... .. . ... .. 424
Proactive Problem-Solving versus
Reactive Sanctioning . . . . . . . .
Release, Re-entry and Reintegration
of Youth offenders ................ 424
. . .440
The Costs of Youth Justice .... ....... 424
Managing Technology. ... ............ .440
The Effectiveness of Interventions with
Youth Offenders ................. 425
Adhering to the Rule of Law and
Respecting the Rights of the Accused
and Offenders . . . . . . . . . . . . . . . . . . . . . .441
Summary ... . . ................... 427
Key Points Review .......... ........ 427
Key Term Questions ...... .......... 428
Critical Thinking Exercises .. . . ........ 428
Considering Ethics in Criminal Justice. .. .. 441
Ensuring Accountability in the Criminal
Justice System .. . .... .. . . ...... . . . .442
Class/Group Discussion Exercise . . . .... 429
Ensuring the Health and Wellness of
Criminal Justice Professionals . . ... ... .. 442
Media Links . .. . ........ ...... .... 429
Addressing the Needs of Victims . ..... .. .443
References . . . . . . . . . . . . . . . . . . . . . . . 429
Indigenous Persons and the Criminal
Justice System: Time for a Reset? ..... . .443
PART VI RECONSIDERING CRIMINAL
JUSTICE .... . ..... . ... 436
Addressing Trauma in Offenders . ....... .444
Chapter 14: Going Forward: Challenges
to and Opportunities
for Criminal Justice
Reform .. .......... 438
Administering Criminal Justice in a
Diverse Society . . . . . . . . . . . . . . . . . . .. .445
Opportunities for Criminal Justice Reform 446
Challenges for the Criminal Justice
System . .. ...... . .... . ....... . . 439
The Escalating Costs of Criminal
Justice . . . . . . . . .... .. ......... . .. .446
Expanding Effective Criminal Justice
Interventions and Leaming From Failure .. .447
Developing Human and Helping
Relationships ..... ........... ... ... .447
Giving Voice to At-Risk and Vulnerable
Groups ..... . ............. . . ... .. .447
Improving Assistance for Victims of Crime . .448
Strengthening Restorative Justice . ... .. . .448
Questions to Be Asked about the Criminal
Justice System ................. . 449
Summary ....... . . . ........... ... 450
Key Points Review . ... ......... .. .. . 450
Key Term Question ......... . ... . . .. 450
Critical Thinking Exercise ........... . . 451
Class/Group Discussion Exercise . . . . . . . 451
Media Link ...... . .... .. . . ... . .... 451
References . .... .. . ..... . . ........ 451
Reducing the Marginality of Offenders. ... .445
Glossary . . . . . . . . . . . . . . . . . . . . . . . . . 454
Index ... . ..... . .. . . . ....... .. ... 460
The Need to Reimagine Criminal Justice . . .446
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Table of Contents
xiii
Preface
THE GOAL OF THIS TEXT
The Canadian criminal justice system is a complex, dynamic, and ever-changing enterprise. How the various components of the system operate and the extent to which they
succeed in preventing and responding to crime and criminal offenders affect not only
the general public but also criminal justice personnel and offenders. This edition of
Canadian Criminal Justice: A Primer, Sixth Edition, is designed with the same basic
objectives as the previous editions: to present in a clear and concise fashion materials
on the criminal justice system in Canada and to highlight the key issues surrounding
this country's responses to crime and offenders . This book is not an exhaustive examination of all facets of the criminal justice process. Rather, its intent is to present, with
broad brush strokes, information on the structur~ and operations of the criminal justice
system, at the same time identifying some of the more significant challenges and controversies that arise at each stage of the justice process.
ORGANIZATION OF THE TEXT
This edition of the text is organized into six parts. Part I is designed to set the framework
for the study of Canadian criminal justice. Chapter 1 sets out the foundations of the
criminal justice system, Chapter 2 highlights key features of the dynamics of the criminal justice process, and Chapter 3 discusses inequality, racism and discrimination, and
the lived experiences of Indigenous peoples, racialized groups, and persons in visible/
cultural/religious minorities as a backdrop for the study of Canadian criminal justice.
Part II contains three chapters that focus on various dimensions of Canadian policing.
Chapter 4 discusses the structure and roles of the police; Chapter 5 examines police
powers and decision-making; and Chapter 6 considers police strategies, operations,
and engagement.
Part III presents materials on the criminal courts. Chapter 7 examines the structure
and operation of the criminal courts; Chapter 8 looks at the prosecution of criminal
cases; and Chapter 9 discusses sentencing in the crim inal courts.
Part IV contains three chapters that focus on Canadian corrections. Chapter 10 discusses correctional alternatives to confinement; Chapter 11 reviews correctional institutions; and Chapter 12 examines the release, re-entry, and reintegration of offenders
into the community.
Part V contains Chapter 13, which examines the youth justice system .
Part VI is titled "Reconsidering Criminal Justice," and in Chapter 14, the final chapter
of the text, tl1e challenges to and opportunities for criminal justice reform are discussed.
Part Openers provide a concise introduction for students and highlight key trends in
the criminal justice system that will be discussed in the chapters following.
Learning Objectives are set out at the beginning of each chapter. They identify the
purpose of the materials that are presented and serve to orient the reader to the chapter.
Tables, graphs, charts, and photographs are interspersed throughout the book, and
provide visual representations of data, current events, or key people and places in tl1e
criminal justice system .
xiv
NEL
A running glossary proceeds throughout the text, with key terms defined in the margins, for easy retrieval from students.
Each chapter ends with a Summary, to help students reflect on what they have just
learned. Key Points Review and Key Term Questions have been retained and updated
from the fifth edition, to test knowledge of specific topics.
New to the Sixth Edition, Critical Thinking and Class/Group Discussion Exercises
at the end of the chapter further engage the student in considering and discussing critical issues in the justice system. Many of the exercises centre on actual cases and events.
Lastly, Media Links have been carefully selected to provide students with access to
persons who are involved in some way witl1 the criminal justice system, as well as to
provide a more in-depth examination of issues that were raised in the chapter.
CHANGES TO THE SIXTH EDITION
In addition to updating legislation, inserting new court rulings, and including new
materials on all facets of the justice system, there are a number of significant changes in
this edition. These include the following:
FEATURE BOXES
There are several formats tlrnt are used to present materials and to engage the student
reader. The Perspective feature provides first-hand accounts that capture the dynamics
of the criminal justice system; boxes strategically placed throughout the chapters highlight case studies, innovative programs, and important court decisions. At Issue boxes
are centred on topics that are tl1e subject of debate, and challenge students to consider various perspectives and to answer questions that will assist them in formulating
their tl1oughts on the topic. Research File boxes appear tl1roughout the book, and summarize the research literature on criminal justice policies and programs. And general
boxes (no title) provide stories generally in the news or engaging for students, and delve ·
into a topic more deeply.
FILE BOXES
In each chapter, there are a number of file boxes iliat are designed to highlight important
events, research studies, and cases. Police File boxes appear in Part II; Court File boxes
are included in Part III; Legal File boxes are included in Parts II and III; Criminal Justice
Files appear in Part I; C orrections Files in Part IV; and Youth Justice Files in Part IV.
NOTABLE CHAPTER-SPECIFIC CHANGES
Chapter 1: This chapter has been re-written and examines how crimes are "created,"
Canadian law, the Canadian legal system, and the criminal law in a diverse society. A
new section in Chapter 1, "Thinking Critically about the Criminal Justice System,"
provides students wiili suggestions on how to be a critical thinker and how to consider
tl1e materials presented in the text.
Chapter 2: This chapter introduces students to tl1e purpose of the criminal justice
system, and the role and responsibilities of governments in ilie administration of justice. The competing models of criminal administration are discussed, as are the flow
of cases through tl1e system and several of tl1e features of the criminal justice process.
Restorative justice is introduced, and it is noted that this alternative approach to justice
will be considered throughout the text, rather than having its own dedicated chapter as
in tl1e previous edition.
NEL
Preface
xv
Chapter 3: This is a new chapter that focuses on considerations in the study of criminal
justice. It includes a discussion of the issues surrounding racism, discrimination, and
inequality, and the experiences of Indigenous and racialized persons and members of
visible/cultural/religious minority groups in Canada. The chapter is designed to provide
the reader with exposure to the lived experiences of persons who may be subjected to
racism and discrimination, which, in turn, will contribute to an understanding of issues
such as racial profiling and biased policing and the overrepresentation of Indigenous
persons and Blacks in the criminal justice system. The issues of racism and discrimination are key themes in the text.
Additional considerations in the study of criminal justice are also presented in this
chapter, again to provide background context for the materials presented in subsequent chapters.
Chapter 13: This is another new chapter in the text, and it examines the youth justice
system. Many adults who come into conflict with the law first became involved in the
youth justice system. This fact compels an understanding of the approach to youth in
conflict, the legislation and programs designed to address their issues, and their experiences in the youth justice system, both under supervision in the community and in
youth correctional facilities.
INSTRUCTOR RESOURCES
The elson Education Teaching Advantage ( ETA) program delivers research-based
instructor resources that promote student engagement and higher-order thinking to
enable the success of Canadian students and educators. Visit elson Education's
Inspired Instruction website at www.nelson.com/inspired to find out more about NETA.
The following instructor resources have been created for Canadian Criminal Justice:
A Primer, Sixth Edition . Access these ultimate tools for customizing lectures and presentations at www.nelson.com/instructor.
NETA TEST BANK
This resource includes more than 350 multiple-choice questions written according to
ETA gu id elin es for effective construction and development of higher-order questions. Also included are more than 250 true/false questions, 150 short-answer questions, and 140 essay questions.
The ETA Test Bank is available in a new, cloud-based platform. elson Testing
Powered by Cognero® is a secure online testing system that allows instructors to author,
edit, and manage test bank content from anywhere Internet access is ava ilable. No special installations or downloads are needed, and the desktop-inspired interface, with its
drop-down menus and familiar, intuitive tools, allows instructors to create and manage
tests with ease. Multiple test versions can be created in an instant, and content can
be imported or exported into other systems. Tests can be delivered from a learning
management system, the classroom, or wherever an instructor chooses. elson Testing
Powered by Cognero for Canadian Criminal Justice: A Primer, Sixth Edition, can be
accessed through www.nelson.com/instructor.
c o g~
sessment'
NETA POWERPOINT
Microsoft® PowerPoint® lecture slides have been created for every chapter. There is an
average of 25 slides per chapter, many featuring key figures, tables, and photographs from
Canadian Criminal Justice: A Primer, Sixth Edition. ETA principles of clear design and
xvi
Preface
NEL
engaging content have been incorporated throughout, making it simple for instmctors to
customize the deck for their courses.
IMAGE LIBRARY
This resource consists of digital copies of figures , tables, and photographs used in the
book. Instructors may use these jpegs to customize the ETA Power Point or create their
own PowerPoint presentations. An Image Library Key describes the images and lists the
codes under wh ich the jpegs are saved. Codes normally reflect the chapter number
(e.g., C0l for Chapter 1), the figure or photo number (e.g., Fl5 for Figure 15), and the
page in the textbook. For example, C0l-Fl 5-pg26 would correspond to Figure 1-15 on
page 26.
NETA INSTRUCTOR'S MANUAL
This resource is organized according to the textbook chapters and addresses key educational concerns, such as typical stumbling blocks student face and how to address
them. Other features include common student misconceptions, in-class activities,
online activities, suggested answers to questions in the text, and links to video clips with
questions for discussion or homework submission.
STUDENT ANCILLARIES
elson Education's Premium Companion Website for Canadian Criminal Justice:
A Primer brings course concepts to life with interactive learning and exam preparation
tools that integrate with the printed textbook. Students activate their knowledge using
engaging online resources. Visit www.nelson.com/student for access.
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Preface
xvii
A Unique Learning FRAMEWORK
Part Openers provide a concise introduction
for students and highlight key trends in the
criminal justice system that will be discussed
in the chapters following .
\
Learning Objectives identify the purpose of the
materials that are presented and serve to orient the
reader to the chapter.
PERSPECTIVE
A Physician's Perspective on the Burdens and Ethics of Assisted Death
Perspective boxes provide first-hand
accounts that capture the dynamics of the
criminal justice system.
If you ask the public, what you're really asking them is, "Do you want to have a right to access
these interventions if you come to the end of your life and you're suffering?" That's a very different
question than if you ask a medical professional, "Do you want to kill your patients? Or do you
want to assist in the death of your patients?" One is a right, the other is an obligation. Those are
intricately related. If someone in society has a right to something, it means someone else has an
~
SHOULD TIIERE BE INDEPENDENT OVERSIGHT OF TIIE JUDICIARY?
Earlier in this book, it has been noted that the police are the
only criminal Justice agency that Is subjected to outside civilian
oversight. The legal profession, including the ju<lciary, is self·
regulated; that ts, the only structures of accountability exist within
the legal profession Coocerns have been raised about the ability
of prOYincial and territorial law societies to both 1epreseot and
regulate the profession and the effectiveness of the Canadian
Judicial Council as overSight bodies.• As well, It 6 noted that most
complaints that are made 10 the Canadian Judicial Council are not
,h,.+
.,.,.1,,,,.+
thn
not soo,ect to the dJrection or control of the executive branch of
govefNnefll."C
A review of the record indicates that few complatnts ultJmately
resutt in the removal of a judge from the bench. As well, sirce the
~ procedure was establlShed in 1971. there have been
very few pooliC 1nq1.uries by the courcll ilto the behavwr of a federal
judge Mostcompl!ln1S(whlcha,eragelesS~200peryear)are
At Issue boxes challenge students to
consider the various perspectives of a topic
and answer questions that will assist them in
formulating their thoughts on the topic.
handloJbylhechairpersoncilhecardandarenotptillicizedbot
kept between !he C01111)1ainant, !he judge, and !he CJC. nm~ht be
ltt.~+ tt.;,.
, ... ftt.....
. ' ,._,._
BOX 1.1
General boxes provide stories generally
in the news or engaging for students, and
delve into a topic more deeply.
xviii
THE FUNCTIONS OF THE CRIMINAL LAW
In Canadian society, the criminal law provides the following functions:
•
•
•
•
acts as a mechanism of social control
maintains order
defines the parameters of acceptable behaviour
reduces the risk of personal retaliation (vigilantism, or people taking the law into their own hands)
NE L
~
A CASE OF UC:W. PIIOFIUNG AND CARDING
::~
.-
File boxes highlight important events,
research studies, and cases. Police File
boxes appear in Part II; Court File boxes
are included in Part Ill; Legal File boxes are
included in Parts II and Ill; Criminal Justice
Files appear in Part I; Corrections Files in
Part IV; and Youth Justice Files in Part IV.
THE WIIONGFUL COHICTIOII OF TAMMY MAIQUAllDT
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THE WARRIOIIS MWIST VIOLENCE l'IOGUM, VAICOIVU
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RESEARCH FILE 13. 1
A PROFILE OF INDIGENOUS YOUNG WOMEN IN CUSTODY
A study (N = 500) of yooth in custody in British Columbo! found that, among the Indigenous yoong
women
Research File boxes appear throughout the book,
and summarize the research literature on criminal
justice policies and programs.
• 97 percent had lelt home ear1y to live on their own, on the streets, or in foster care;
• 82 percent had been in foster care at some point;
• 80 percent reported childhood trauma, including physical abuse (80 percenQ, sexual abuse
(65 percenQ, and mental health issues in the family (30 percent);
• 80 percent had been introduced to hard drug use at an early age; and
• Compared to noo-lndigenoos yoong women in custody, had spent more time in their lives in custody.
SUMMARY
Th is chapter was designed to provide background context to the study of the Canadian
criminal justice system . Inequality, racism, prejudice, and discrimination were introduced as features of Canadian society. These are often manifested in racial profiling
and the racia li zation of groups and individuals. Women, Indigenous persons, Musli ms,
and sexual minorities have lived experiences that affect their quality of li fe and may
Summaries encourage students to reflect on
what they have just learned.
place them at risk of being victi mi zed or of corning into conAict with the law.
CRITICAL THINKING EXERCISE
Critical TI1inking Exercise 3. 1
Critical Thinking Exercises and Class/
Group Discussion Exercises at the end of
the chapter further engage the student in
considering and discussing critical issues
in the justice system. Many of the exercises
focus on actual cases and events.
MEDIA LINKS
"Warriors Against Violence," C BC News. Jul> 6,2015. http:1/~"'w.cbc.ca/news/indigcnm,s/
warnoo:-againsl-violcncNrics-to-he;il-aboriginal-men-1.3 136168
"Who's Watching? 4,500 O utstanding Warrants for Alleged Probation and Conditional
Sentence Violations in Ontario," Global News, ~la) 10, 20 17. Follow the linls in this
article for a SC\'eral pa rt media series on probation in Ontario, http://globalnews.ca/
news/34 303 13/4 500-outstanding-warrants-for-allegcd-probation-and<0nditional
~ 11lence-, iolations-in-onlario.
Indigenous Experiences
1llc stud}' of lhc invol\cmcnl of Indigenous persons in the crimina l justice system requires
an understanding of theu h1stoncal and conlc:mporaf) circumstances. \Vatch the film \\'e
\\'ill& F~at
...__ _--1 CLASS/GROUP DISCUSSION EXERCISE
Class/Croup Discussion 3. 1
11,c '•Colonized Mind" of Indigenous Persons
Jana-Rae \'erxa is Anishinaabc from Little Eaglc and Couchic:hing Fi rst Nation and belongs
to the Sturgeon clan She uses lhc concept of the ..coloni1.ed mind~ of Indigenous persons
lo explain the experiences of Indigenous peoples and their pc:rspccthcs and perceptions.
Media Links have been carefully selected to provide
students with access to persons who are involved in some
way with the criminal justice system, as well as to provide
a more in-depth examination of issues that were raised in
the chapter.
"\\11o's Watchi11g? Ont:irio's Proballm, System 'a Joke.' Say Offenders" (Part) ), Global
NEL
xix
Acknowledgements
I would like to acknowledge the many people throughout the criminal justice system
who have contributed to the ideas and information that have been incorporated into
this book. My love and thanks to my life partner, Sandra Snow, for her unwavering
support and encouragement.
I would also like to thank the reviewers of the previous edition of the text for their
invaluable comments, criticisms, and suggestions:
Stephen Schneider, Saint Mary's University
Eva Wilmot, Camosun College
athan Innocente, University of Toronto at Mississauga
Cat Baron, Algonquin College
Vicki Ryckman, Loyalist College
As always, it has been a pleasure to work with the professionals at
MacLean , Suzanne Simpson Millar, and Imoinda Romain.
elson: Leanna
xx
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I
A Note to Instructors
I
I
SEMI-ANNUAL UPDATES
I
The dynamic nature of the Canadian criminal justice system presents challenges in
ensuring that the materials in the text are accurate and up-to-date. Throughout the
system, there are high-profile issues being debated, court decisions that are impacting
every facet of the system, and a veritable explosion of criminal justice research. With
editions of the text on a four-yea r publication cycle, the materials can become dated,
often by the time the print dries on a new edition.
To address this, updates for each of the chapters will be provided to course instructors
semi-annually-in the spring and fall of each calendar year. The updates will include
significant legal cases and impactful court rulings, new research findings , and major
changes in legislation, policy, and operations of the various components of the justice
system. ew Critical Thinking Exercises and C lass/Group Discussion Exercises will
also be provided to accompany the new materials.
These updates will be designed to provide instructors and students with current materials that will enhance the study of the Canadian criminal justice system . The first
update will be available in spring 2019.
As always, I encourage feedback on the book generally and on any specific materials
in it, errors of fact, and omissions. Feel free to contact me at griffith@sfu .ca with any
comments, questions, or suggestions for future editions of the book.
Thanks.
Curt Taylor Griffiths, Ph.D.
Vancouver, British Columbia
April 2018
NEL
xxi
Chapter 1 : The Foundations of Criminal Justice
Chapter 2: Understanding the Criminal Justice System
Chapter 3: Considerations in the Study of Criminal Justice
•
•
A 10-year-olcl girl disappeared while walking home from a friend's house in
Toronto in 2013. Her body parts were later found in bags floating in Lake
Ontario. Police canvassed about 300 homes in her neighbourhood and asked
men to provide D A. One man who refused was arrested and subsequently
convicted. He later pleaded guilty to first-degree murder. At Issue: To what
extent, if any, should the police be allowed to conduct a "D A sweep" (or
"blooding") in order to attempt to solve a crime? (see Chapter 5).
ln 2012, .S., a Muslim woman living in Ontario, wanted to wear her
niqab (full face veil revealing only tl1e eyes) while testifying in a preliminary
hearing involving charges against her uncle and cousin for sexual assault.
At issue: Should a Muslim woman who wears a niqab be permitted by tl1e
judge to testify in court against her alleged perpetrator? (see Chapter 8).
• In April 2013, a 16-year-old boy shot his 15-year-old cousin with a
hunting rifle at a playground, paralyzing him. Both boys were African
ova Scotians. The boy was subsequently found guilty of attempted
murder. At Issue: Should cultural assessments play a role in the
sentencing of young offenders? (see Chapter 13).
These cases all occurred in the past few yea rs and provide a snapshot of
the dynamic nature of the criminal justice system and the complex issues
that surround its operation. The three chapters in this part are designed to
set the framework for the study of the Canadian criminal justice system.
Chapter 1 sets out the foundation of the legal system and discusses the origins
and application of the criminal law. It is noted that who and what are defined
as criminal is ever-changing and that, in a democratic society, tensions
often exist between the criminal law and the rights of individuals. Chapter 2
provides information to understand tlie criminal justice system, including its
purpose, the competing models of criminal justice administration, the flow of
cases through the system, and a discussion of tl1e effectiveness of tl1e system.
The materials in Chapter 3 are presented to provide a backdrop for the study
of Canadian criminal justice. There is a discussion of inequality, racism and discrimination, and the lived experiences oflndigenous peoples, racialized groups,
and persons in visible/cultural/religious minorities. A number of additional
issues tl1at surround tl1e criminal justice system are also identified and discussed.
3
CHAPTER 1
THE FOUNDATIONS
OF CRIMINAL JUSTICE
After reading this chapter, you should be able to
• Describe what is meant by critical thinking .
• Define crime and discuss how crime is constructed.
• Discuss the differing perspectives on the origins and application of the
criminal law.
• Identify the types of Canadian law and the functions of the criminal law.
• Discuss the key principles of Canadian law.
• Describe the origins and importance of the rule of law.
• Discuss the importance of the Canadian Charter of Rights and Freedoms .
• Describe the main provisions of the Canadian Charter of Rights and Freedoms .
• Discuss the Canadian Criminal Code.
• Discuss the issues surrounding the application of criminal law in a diverse society.
The criminal justice system is an integral , and high-profile, component of Canadian
society. It is also very dynamic, often controversial, and either very effective in achieving
"justice" or not, depending upon one's perspective and experience. The controversies
that surround the criminal justice system, such as whether certain groups or individuals are treated differently tl1an others, are often a reflection of issues in the larger
Canadian society. And, as in Canadian society, politics often plays a role in defining
what behaviour is a crime and what the response will be.
!
I
On a daily basis, there is a continual stream of events, persons, and issues related
to criminal justice, as well as ongoing debates as to whether the justice system is fair;
provides "justice" for victims, offenders, and communities; and is capable of addressing
its challenges.
I
The major components of the criminal justice system are the police, the courts, and
corrections. However, the victims of crime, offenders, and the community are also
important considerations and will be discussed throughout the following chapters. All
of these groups have a stake in the criminal justice process and may be impacted by
the events and decisions tl1at occur during it. Certain groups of offenders, including
Indigenous and racialized persons and others, may face particular challenges. This text
is designed to stimulate a research-informed discussion that also includes the "voices" of
persons in conflict with the law, crime victims, and justice system personnel.
THINKING CRITICALLY ABOUT THE CRIMINAL
JUSTICE SYSTEM
The criminal justice system is a complex enterprise and there are often no "right" or
"wrong" answers to the issues that arise. Rather, there are different perspectives on the
justice system, its operation, and what action is required to address tl1e issues tl1at are
identified. Assuming the role of a critical thinker will be very beneficial in reading and
I
I
reflecting on the materials.
I
I
I
WHAT IS CRITICAL THINKING?
I
I
It has been said, "C ritical thinkers distinguish between fact and opinion; ask questions;
make detailed observations; uncover assumptions and define their terms; and make
assertions based on sound logic and sound evidence." Call it "healthy skepticism."
I
I
Critical thinking
(thorough thinking)
I
In examining an issue, distinguishing
between fact and opinion, considering
multiple points of view, and being openminded to all ideas.
I
I
\
I
\
I
I
I
• Ask questions: Engage curiosity and question statements and assertions.
• Consider multiple points of view: Be fair and open-minded to all ideas.
• Draw conclusions: Examine the outcome of your inquiry in a more demanding and
critical way.
In reading and thinking about the materials in this text, it is important to maintain
a "critical eye" -that is, to be a critical thinker and to ask the questions that critical
thinkers ask. The At Issue boxes tl1at are embedded in tl1e chapters of this book and
the Critical Thinking Exercises at the end of each chapter are designed to stimulate
you and your fellow students' thinking about critical issues in criminal justice, to help
you consider various perspectives on these issues, and to assist you in reaching your
own conclusions.
I
I
A critical thinker considers multiple points of view and is fair and open-minded to
all ideas. Conclusions are reached based on a thoughtful consideration of the issues.
Critical thinking has also been called thorough thinking. 1
To become a critical thinker, one must engage in the following:
NEL
CHAPTER 1 : The Foundations of Criminal Justice
5
PERSPECTIVE
A Physician's Perspective on the Burdens and Ethics of Assisted Death
If you ask the public, what you're really asking them is, "Do you want to have a right to access
these interventions if you come to the end of your life and you're suffering?" That's a very different
question than if you ask a medical professional, "Do you want to kill your patients? Or do you
want to assist in the death of your patients?" One is a right, the other is an obligation. Those are
intricately related. If someone in society has a right to something, it means someone else has an
obligation to provide that. So basically the Supreme Court that has told Canadian physicians, after
centuries of this being illegal and completely in opposition to all teachings in medical ethics, "We
are now going to make this legally available, and you as a profession have an obligation to step
forward and provide it."
I think, to the profession's credit, we have responded to that in a very constructive way. We've
taken part in all of the conversations, we've helped to frame the legislation and the regulations, we
have not opposed this. But we have also tried to make clear how very, very difficult this is for most
doctors.
Imagine you go into the profession of medicine and you're being told your obligation is to
preserve life, to improve quality of life, to cure whenever possible, to care always. Then all of a
sudden, overnight a court decision tells you, "Now everything's changed. Everything you believe in
medicine is a little bit different today." That's very, very challenging for the average doctor to just
do a 180 in terms of their belief system and their approach to care at the end of life.
Source: From S. Proudfoot. 2016, June 8. "A CMA Doctor on the Burdens and Ethics of Assisted Death ," Mac/ean's.
http://www.macleans.ca/society/health/a-cma-doctor-on-assisted-death-and-navigating-the-ethical-grey-area. Used
with permission of Rogers Media Inc. All rights reserved.
The physician's comments on assisted death in the nearby Perspective box highlight
that there are often issues of ethics that arise in the law.
WHAT IS A CRIME AND WHY?
The obvious answer to this question is, "a crime is whatever is against the law." However,
it's much more complex than this. Beyond the very serious traditional types of crime,
such as murder, what is or is not a crime is not set in stone but has changed over the
course of Canadian history.
WHAT IS A CRIME?
eedless to say, with out crime there would be no criminal justice system. A crime is
generall y defined as an act or omission that is prohibited by criminal law. Every jurisdiction sets out a limited series of acts (c rimes) that are prohibited and punishes the
commission of these acts by a fine or imprisonment or some other type of sanction . In
Crime
An act or omission that is prohibited by
criminal law.
exceptional cases, an omission to act can constitute a crime-for example, failing to
give assistance to a person in peril or fai ling to report a case of child abuse.
Two critical ingredients of a crime are the commission of an act (actus reus) and the
mental intent to commit the act (mens rea ). A crime occurs when a person
• commits an act or fails to commit an act when under a legal responsibility to do so;
• has the intent, or mens rea , to commit the act;
• does not have a legal defence or justification for committing the act; and
• violates a provision in criminal law.
6
Part I: Canadian Criminal Justice: Setting the Framework
NEL
THE SOCIAL CONSTRUCTION OF CRIME
Have you ever thought about why, up until 2018, marijuana use (except for medicinal
purposes) was illegal, but drinking alcohol has been legal for decades? And why only
marijuana but not cocaine? To say the least, there is not always agreement about what
should be against the law. Murder? Yes. Impaired driving? Yes. Bank robbery? Sure.
Assisted suicide? Somewhat more contentious, even though it is legal (see At Issue I.! ).
It is also important to distinguish between behaviours that may be considered deviant
by a large portion of society, and crimes. While crime is behaviour that breaks the
law, deviance is behaviour that is contrary to the norms and values of the larger
society. Dressing Goth is not against the law, but may be viewed as deviant by the
average passer-by as may be cross-dressing. Deviance includes criminal behavior and
I
I
AT ISSUE 1.1
I
I
MEDICAL ASSISTANCE IN DYING: 8 THE TENSION BETWEEN THE LAW, RELIGION,
AND PROFESSIONAL PRACTICE
In 2015, in the case of Carter v. Canada (Attorney General) (2015
sec 5), the sec ruled that section 14 and paragraph 241 (b) of
I
I
\
Given the various perspectives on the practice, the debate over
assisted death is likely to continue.
the Criminal Code were unconstitutional because they prohibited
physicians from assisting in the consensual death of another
QUESTIONS
person. In June 2016, Bill C-14, An Act to amend the Criminal
1. How does one balance the legal and ethical issues surrounding
Code and to make related amendments to other Acts (medical
assisted dying?
assistance in dying), received Royal Assent and made assisted
2. In your view, should this be a legal issue?
dying legal for terminally ill patients. The provinces and territories
3. Should all physicians be required to abide by the law?
were responsible for developing the appropriate procedures for
4. What position would you take regarding the refusal of some phyt
th
medically assiS ed dea ·
sicians to assist a patient in dying or refusing to refer a patient to
Medically assisted death continues to be surrounded by controversy.
another physician who would assist the patient to die?
Proponents argue that the new provisions give the control over life to
.
· wh · b I
d th t r t h Id b bl t d th .
5. What does this issue illustrate about the interplay between the law,
patients ere it e ongs an a pa ien s s ou ea e o en eir
religious views and professional ethics?
pain and suffering. A survey of Canadians (N = 2,271) in 2016 found that __
'
nearly 72 percent of respondents were strongly in support of physician• Medical assistance in dying in Canada includes both assisted suicide and voluntary
· ted death , an d 74 percent supported aIIowing
· perSons to requ est
euthanasia. Assisted suicide is the act of intentionally killing oneself with the assistance
ass1s
of another who provides the knowledge, means, or both (Health Law Institute, Dalhousie
suicide before they became too ill to do so.b
University, n.d.). In cases of assisted suicide, aphysicianprovides drugs to aterminally ill
Opponents, which include physicians, have argued that assisted
patient who then takes the drug to end his or her life. In cases of euthanasia, aphysician
dying violates their oath to care for patients.c The Christian Medical
administers alethal drug to relieve suffering, which ends the person's life.
and Dental Society of Canada initiated court proceedings against the
b A. csanady. 2016, June10. "Strong Majority of Canadians want Assisted Suicide
College of Physicians and Surgeons of Ontario, arguing that the policy
Bill to Allow tor 'Advance Consent': Poll," National Post. http://nationalpost.com/news/
which states that physicians who are opposed to medically assisted
politics/strong-majority-ot-canadians-want-assisted-suicide-bill-to-allow-for
-advanced-consent-poll/wcm/edc245f6-68ce-40f0-9ca 7-a96da827bff6.
death on moral, religious, or other grounds must refer the patient to
c A. Jerome. 2017, April 7. "Physicians Opposed to Assisted Dying Say Their Charter
another physician who will carry out the practice, makes them ethically
Rights Are Being Violated," The Lawyer's Daily. https://www.thelawyersdaily.ca/
responsible for the patient's death. This puts physicians who opposed
articles/2856/physicians-opposed-to-assisted-dying-say-their-charter-rights-are
medically assisted death in the position of being between their legal
-being-violated.
responsibilities and their rights under the Charter. Physicians who
Additional sources: Department of Justice Canada. 2016. "Medically Assisted Dying:
do not refer could be disciplined by the College of Physicians and
Supreme Court of Canada Ruling." httpJ/www.justice.gc.ca/eng/cj-jp/ad-am/scc-csc.html;
Surgeons.
R. Gallagher. 2016. "Physician-Assisted Suicide and Euthanasia: The Issues," Ganadian
On the other hand, the BC Civil Liberties Association challenged
Virtual Hospice. http://www.virtualhospice.ca/en_US/Main+Stte+Navigation/Home/Topics/
Topics/Decisioos/Physician_Assisted +Suicide+ and+ Euthanasia_+ The+ lssues.aspx;
the constitutionality of the law because it excludes people with
S. Rne. 2016, June 22. "Christian Doctors Challenge Ontario's Assisted-Death Referral
long-term disabilities, and those with "curable" medical conditions
Requiremen~" Globe and Mail. httpsJ/www.lheglobeandmail.com/news/nationaVchristian
whose only treatment options are those that some people may find
-doctors-challenge-ontarios-assisted-death-referral-policy/artide30552327; Health Law
unacceptable.
Institute, Dalhousie Universtty. n.d. "Assisted Suicide." httpJ/eol.law.dal.caf?page_id=236.
NEL
CHAPTER 1: The Foundations of Criminal Justice
7
a wide range of other behaviours that are not against the law, but may be frowned
upon by the larger society. What is viewed as deviant changes over time: until recent
years, tattoos and piercings would have been considered as deviant, but today are
not generally viewed as unusual.
The criminal law is not static, however, and, almost overn ight, legislative enactments
or judicial decisions can render behaviours that were previously illegal merely deviant.
In 2013, for example, the Supreme Court of Canada (SCC) struck down Canada's prostitution laws as unconstitutional (Canada (Attomey General) V. Bedford, 2013
72).
A key concept that assists in understanding what is, or is not, a crime is the social
sec
construction of crime. This is the process by which the "same behaviour may be
considered criminal in one society and an act of honour in another society or in the
same society at a different time." 2 Whether a behaviour is defined as a "crime" is not
a consequence of the behaviour itself, but is the result of the social response to the
. . 3
behaviour or to th e persons or groups who are engage d m 1t.
Criminologists often conduct historical analyses in an attempt to understand (1) the
factors involved in the definition of behaviours as criminal, (2) an increase or decrease in
the severity of the criminal law, (3) the response of the criminal justice system, and (4) the
factors that influenced the repeal of a criminal law, resulting in the decriminalization of
certain behaviours. The Canadian criminologist eil Boyd has pointed out, "Law can
be fully comprehended only by documenting and analyzing the social, political , and
Social construction
of crime
The notion that the legal status of
behaviours is not determined by the
behaviour itself, but is the result of the
social response to the behaviour.
economic contexts that give it life and continue to influence its existence." 4
Resea rchers have conducted historical studies of criminal law reform in an attempt
to understand how the social, economic, and political environment may influence
legislation. For example, laws against opium use first passed in the early 1900s have been
linked to an ti-Asian prejudice among Euro-Canadians of the clay. Similarly, a review of
how marijuana came to be illegal in Canada reveals the prominent role of one Emily
Murph y, an Alberta magistrate who was also an anti-drug crusader. Writing under the
pen name of Janey Canuck, she wrote a series of articles that were later made into a
book titled The Black Candle. In the book, Murphy "raged aga inst' egro' drug dealers
and Chinese opium peddlers 'of fishy blood' out to control and debase the white race." 5
The shifts in the definition of behaviours as illegal or deviant provide fascinating
insights into the dynamic nature of criminal law and the behaviours that are defined as
criminal. There may be, for example, massive violation of the criminal law, and ye t the
behaviour of the individuals involved may not be viewed as criminal.
A historical example is the massive violation of the prohibition laws against drinking
alcoholic beverages by Canadians during and after World War I. An erosion in public
support for anti-drinking laws, however, ultimately resulted in the repeal of prohibition. Similarly, the widespread recreational and medicinal use of marijuana by many
Canadians, accompanied by changing attitudes toward the drug and the high costs of
enforcement, culminated in its legalization by the federal Liberal government in 2018.
A key role in criminalizing certain activities is often played by moral entrepreneursindividuals, groups, or orga nizations who seek action against certain groups of people or
certain behaviours and bring pressure on legislators to enact criminal statutes. Historically,
and recentl y, moral entrepreneurs have tended to be most active in the area of victimless
crimes, such as drug and alcohol use and prostitution. Examples of moral entrepreneurs
include Motl1ers Against Drunk Driving (M.A.D.D.) and pro-choice and pro-life groups.
The issues that surround medical assistance in dying can be used to illustrate tl1e
chall enges and controversy that often surrounds the application of the criminal law in
Canadian society ( t Issue 1.1 ).
8
Part I: Canadian Criminal Justice: Setting the Framework
Moral entrepreneurs
Individuals, groups, or organizations who
seek action against certain groups of
people or certain behaviours and bring
pressure on legislators to enact criminal
statutes.
NEL
As society changes, certain behaviours may be criminalized. The pervasiveness of
computer technology led to a number of additions to the Criminal Code (R.S .C. 1985,
c. C-46), including destroying or altering compu ter data (s. 430[ 1.1 ]), using the Internet to
distribute ch ild pornography (s. 163.1 ), and communicating with a child for the purposes
of faci litating the commission of certain sexual offences (s. 172.1 ). The pervasiveness of
cellphones has led to provincial and territorial legislation related to distracted driving.
Conversely, some activities have been decriminalized over the yea rs · that is
the laws against them have been repealed or struck clown. Laws that wer; app li ed
against homosexuals and Chinese immigrants no longer exist. Other laws have been
in the Criminal Code for decades but have not been enforced . In 2017, the federal
government introduced legislation deleting so-ca ll ed "Zombie laws" from the
Criminal Code, laws that had been on the books for decades and were no longe r
enforced and man y of which had been struck down by th e courts but remained in
the Criminal Code. These incluclecl laws against "spreading fa lse news" (so mehow
very relevant again in the ea rl y 21st century), "wa ter-skiing at night," "duelling,"
"possessing crime comics," and "feigning marriage," as well as section 365, which
made it an offence to fraudulentl y "pretend to exercise any kind of witchcraft,
sorcery, encha ntment or conjuration." 6 At times, the SCC has used the Charter of
Rights and Freedoms to strike down laws that are inconsistent with the Cha rter's
provisions and protections.
THE ORIGINS AND APPLICATION OF THE CRIMINAL LAW
A key component of the study of the criminal justice system is understanding the origins and application of the crim inal law. The differing perspectives on where criminal
I
I
Value consensus model
The view that what behaviours are
defined as criminal and the punishment
imposed on offenders reflect commonly
held opinions and limits of tolerance.
laws come from and how they are app li ed via the criminal justice system are reflected
in two models. The first, the value consensus model, views crime and punishment as
reflecting society's commonly held values as well as its limits of tolerance. This view
assumes that there is a consensus on what should be against the law.
Through the application of laws, a society reaffirms the acceptable boundaries of
behaviour and maintains social cohesion. Indeed, there probably is consensus that
murder should be against the law. Incest is another act that is widely condemned. Such
offences, called mala in se (wrong in themselves), are perceived as so inherently evil as
to constitute a violation of "natural law."
Conflict model
The view that crime and punishment
reflect the power some groups have to
influence the formulation and application
of criminal law.
The conflict model, the second theory of the origins and appl ication of criminal law,
draws our attention to the fact that some groups are better able than others to influence
which behaviours and persons are criminalized . In particular, con fli ct theorists see
the rich and privileged as having an advantage in influencing law reform and in what
happens to persons who become involved in the criminal justice system.
Scholars who conduct research using a conflict perspective might ask the following
questions:
• Wh y does a person who steals less than $100 from a convenience store often receive a
much more severe sentence than a stockbroker who defrauds investors of millions of
dollars of investors' money?
• Why are crimes committed by corporations (such as banks that engage in money laundering, companies that fai l to create and maintain healthy and safe working environments, and companies that illegally dispose of hazardous wastes) most often dealt with
through civil court and often involve paying fines rather than being prosecuted under
the criminal law and its sanctions?
NEL
CHAPTER 1: The Foundations of Criminal Justice
9
• Why are Canadian correctional institutions populated by large numbers of Indigenous
persons, Blacks, and at-risk and vulnerable persons with low education and skill levels,
high rates of alcohol and drug addiction , and dysfunctional family backgrounds? Are
these groups actually more criminal than other groups in society?
• What role do interest groups play in influencing the enactment of criminal legislation or
in decriminalizing certain behaviour?
Conflict theorists highlight some of the inequities and paradoxes in the system. If
someone takes money from a bank at gunpoint, it is called robbery. A business decision that causes a bank collapse, thus depriving thousands of account holders of their
money, is call ed a bad day on the stock market. Conflict theorists believe that our
attention is wrongly focused on street crime when the greater risk to most people lies in
the actions of elites, including corporations that dump toxic waste, fix prices, condone
unsafe workplaces, and evade taxes.
THE TYPES OF CANADIAN LAW
The two basic types of law in Canada are substantive law and procedural law.
Substantive law sets out the rights and obligations of each person in society. This
includes the Criminal Code and other legislation that defines criminal offences and the
penalties for persons found guilty of committing criminal offences. Procedural laws are
the legal process that protect and enforce the rights set out in substantive law. Examples
of procedural law are the procedures for arresting a person or selecting a jury in a
criminal trial .7 See Figure 1.1.
Substantive law
Law that sets out the rights and obligations of each person in society; includes
the Criminal Code.
Procedural law
The legal processes that protect and
enforce the rights set out in substantive
law.
THE CANADIAN LEGAL SYSTEM
The Canadian legal system is a common law system , with the exception of Quebec,
which has a civil law system. Judges in a common law system are guided by past
decisions. The common law system originated in Europe and was imported to Canada
in the 17th and 18th centuries. The common law emerged from decisions made
Common law
Law that is based on custom, tradition,
and practice and is generally unwritten.
Canadian Law
Procedural Law
(protect and enforce - - - ~ - - legal processes)
,-----I
PublicLaw
Constitutional
Law
Administrative
Law
Substantive Law
,..-----....
~
Criminal
Law
Labour
Law
Family
Law
Property
Law
10
Part I: Canadian Criminal Justice: Setting the Framework
CivilLaw
Contract
Law
• FIGURE 1.1
The Divisions of Law
NEL
Precedent
A judicial decision that may be used as a
standard in subsequent similar cases.
Stare decisis
I
I
I
I
The principle by which the higher courts
set precedents that the lower courts
must follow.
Statute law
Written laws that have been enacted by
a legislative body such as the Parliament
of Canada.
Case law
Law that is established by previous court
decisions and is based upon the rule of
precedent.
Criminal law
That body of law that deals with conduct
considered so harmful to society as a
whole that it is prohibited by statute,
prosecuted and punished by the
government.
by judges in the royal courts and was based on the notion of precedent: "Whenever a
judge makes a decision that is said to be legally enforced, this decision becomes a precedent: a rule that will guide judges in making subsequent decisions in similar cases."8 A
unique feature of the common law is that it exists in past decisions of judges rather than
being embodied in legal codes or legislation .
In contrast, the civil law system in Quebec is based on the French Code apoleon. It
is composed of civil codes, which are comprehensive statement of rules to be followed
by judges. Judges first refer to the codes and then to previous court clecisions.9
Canadian courts are organized in a hierarchy, with the Supreme Court of Canada
at the top (see Chapter 7). The principle whereby higher courts set precedents that
lower courts must follow is known as stare decisis (Latin for "to stand by what was
cleciclecl"). Underlying this principle is the idea that like cases should be treated alike.
Especially when the law is not precise, judicial interpretation can add clarification so
that all courts are playing by the same rule book, so to speak. Once the SCC rules on a
thorny legal issue, all courts below it are bound to apply that ruling in subsequent cases.
As a consequence, our statute law-both civil (except in Quebec) and criminal-is
found both in statutes and in judicial precedents (the latter referred to as case law). In
other words, many laws-such as those in the Criminal Code-are written clown or codified. But through their decisions in cases, judges can interpret, modify, extend, restrict,
or strike down statutory laws.
THE CRIMINAL LAW
The criminal law is one type of public law, the others being constitutional law, administrative law, and taxation law. Criminal law can be defined as "that body of law that deals
with conduct considered so harmful to society as a whole that it is prohibited by statute,
prosecuted and punished by the government." 10 The criminal law defines which acts
(or omissions) are against the law and sets out the available penalties. It also sets out the
rules that police and judges must follow in criminal matters, including procedures for
making arrests, gathering evidence, and presenting evidence in court. Private law, by
contrast, regulates relationships between individuals other than the state and is used to
resolve disputes between private citizens.
The functions of the criminal law are set out in Box 1.1.
THE SOURCES OF CRIMINAL LAW
In Canada, there are two primary sources of criminal law: legislation and judicial decisions. Merely denoting the sources of criminal law, however, tells us very little about
BOX 1.1
THE FUNCTIONS OF THE CRIMINAL LAW
In Canadian society, the criminal law provides the following functions:
• acts as a mechanism of social control
• maintains order
• defines the parameters of acceptable behaviour
• reduces the risk of personal retaliation (vigilantism, or people taking the law into their own hands)
• assists in general and specific deterrence
• prosecutes criminalized behaviour
• protects group interests
NEL
CHAPTER 1: The Foundations of Criminal Justice
11
the process of Jaw-making or the factors that influence the creation of criminal law.
A variety of explanations have been used by scholars studying the phenomena of
crime and the societal response to it.
Historically, researchers focused on the individual offender and attempted to determine what factors distinguish criminals from non-criminals. The nearly exclusive
focus on the criminal offender overshadowed the process through which behaviours
and individuals came to be defined as criminal. In recent yea rs, however, attention
has increasingly focused on the process through which laws are formulated and
applied and to the activities of legislators, special-interest groups, and criminal justice
decision-makers. Throughout the text, the activities of criminal justice decisionmakers, including police officers, judges, and parole board members, will be discussed.
THE PRINCIPLES OF CANADIAN LAW
There are a number of principles that provide the foundation for Canadian law. These
are set out in Table 1.1.
THE RULE OF LAW
A key component of the foundation of the criminal justice system is the rule oflaw. The
rule oflaw can be traced back to the English Magna Carta, which was originally issued
by King John near Windsor Castle in England in June 1215. A number of passages
in the document spoke to judicial procedure, including the creation of a permanent
court at Westminster and the imposition of fines on commoners and peers alike "only
Rule of law
The requirement that governments, as
well as individuals, be subjected to and
abide by the law.
TABLE 1.1
THE PRINCIPLES OF CANADIAN LAW
r
l
Principle
Meaning
actus non tacit reum nisi mens
sit rea (an act does not make a
person guilty unless he or she
has a guilty mind).
Each crime has two components. The first is actus reus, or the act of doing something. The second is mens rea,
or the guilty intent. To be convicted of most crimes (but not all), a person must have done something criminal,
and usually (but not always) must have intended to do it. Children under the age of 12 and persons with some
severe mental disorders who are deemed unable to form mens rea are not held criminally responsible for their
actions.
nullum crimen sine /ege, nu/la
poena sine /ege (no crime
without a law, no punishment
without a law).
The rules cannot be changed in the middle of the game. Laws cannot be applied retroactively.
ignorantia juris non excusat
(ignorance of the law is no
excuse).
There is an expectation that every citizen be familiar with all the laws and therefore able to distinguish between
legal and illegal behaviour. This expectation is a fiction because the law is constantly changing and, at any given
point in time, is subject to debate and differing interpretations. However, the legal system would grind to a halt if
defendants were able to claim that they had no idea their alleged offences were illegal.
nemo tenetur seipsum accusare
(no one is compelled to incriminate himseln.
Criminal suspects and defendants have the right to remain silent during the police investigation. If they
are forced or threatened to make a confession, that statement will be inadmissible in court. In addition, a criminal
defendant may choose not to testify in his or her defence. This principle is enshrined in the Charter.
nemo debet bis vexari pro
eadem causa (no one should
be twice troubled by the same
cause).
This principle is more commonly known as "double jeopardy." An alleged offender cannot, under most circumstances,
be tried twice for the same offence. In contrast to the American criminal justice system, however, an alleged offender
in Canada can be retried after being acquitted if the Crown successfully appeals the decision by claiming problems
with the correct application of the law at the trial.
12
Part I: Canadian Criminal Justice: Setting the Framework
!
NEL
•
King John signs the Magna Carta at
Runnymede, near London, in June 1215
I
I
I
according to the degree of the offense." Perhaps the m ost famous, and enduring, was
this statement:
No Free-man shall be taken, or imprisoned, or dispossessed, of his free tenement,
or liberties, or free customs, or be outlawed, or exiled, or in any way destroyed; nor
will we condemn him , nor will we commit him to prison, excepting by the legal
judgment of his peers, or by the law of the land. To none will we sell , to none will
we deny, to none will we delay right or justice. 11
The key principles of the rul e of law are set out in Criminal Justice F ile 1.1.
Th e Magna Carta and other documents provided th e bas is for the em ergence of
the rule of law, which becam e the found ation of E nglish Law and, subsequently, the
C anadian (English-speaking) legal system .
The essence of the rule of law is that no one person is above the law, all pe rsons
are bound by the law and a re entitled to protection by the law, and the law should
CRIMINAL JUSTICE FILE 1.1
KEY PRINCIPLES OF THE RULE OF LAW
• The government and its officials and agents, as well as individuals and private entities, are
accountable under the law.
• The laws are clear, publicized, stable, and just; are applied evenly; and protect fundamental
rights, including the security of persons and property.
• The process by which the laws are enacted, administered, and enforced is accessible, fair, and
efficient.
• Justice is delivered timely by competent, ethical, and independent representatives and neutrals
who are of sufficient number, have adequate resources, and reflect the makeup of the communities
they serve.
Source: Excerpted from The Wortd Justice Project, "What Is the Rule of Law?" http://www.wortdjusticeproject/org/
whatrule-law. Reprinted with permission of The World Justice Project.
NEL
CHAPTER 1: The Foundations of Criminal Justice
13
be observed and enforced equall y. The rule of law provides the standard to which
crim inal justice officials must adhere and will be held accountable. While an
admirable principle, the materials presented in the following chapters will reveal
that this ideal is often not achieved .
THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS
The principles of the rule of law and the influence of the Magna Carta can be seen in
the Canadian Charter of Rights and Freedoms, which is the primary law of the land
and guarantees fundamental freedoms, legal rights and quality rights for all citi_ze'.1s
of Canada , including those accused of crimes, "subject only to such reasonable lnmts
prescribed by law as can be demonstrably justified in a free and democratic society."
Among the "fundamental freedoms" given to all Canadian citizens are the following:
Canadian Charter of
Rights and Freedoms
The primary law of the land; guarantees
fundamental freedoms, legal rights, and
quality rights for all citizens of Canada,
including those accused of crimes.
• freedom of conscience and religion
• freedom of thought, belief, opinion, and expression, including freedom of the press and
other media of communication
• freedom of peaceful assembly
• freedom of association
With respect to "legal rights," the Charter states, "Everyone has the right to life, liberty
and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice" (s. 7). More specific rights granted
to Canadians have implications for the powers of the police (see Chapter 5) and the
prosecution of criminal cases (see Chapter 8) and are discussed in those chapters.
The Charter provides a number "equality rights" for citizens (s. 15 ):
(1)
Every individual is equal before and under the law and has the right to the
equal protection and equal benefit of the law without discrimination and, in
particular, without discrimination based on race, national or ethnic origin,
colour, religion , sex, age or mental or phys ical disability.
(2)
Subsection (I ) does not preclude any law, program or activity that has as its
object the amelioration of conditions of disadvantaged individuals or groups
including those that are disadvantaged because of race, national or ethnic
origin, colour, religion , sex, age or mental or phys ical disability.
With respect to "enforcement," the Charter states (s. 24):
( I)
Anyone whose rights or freedoms, as guaranteed by this Charter, have been
infringed or denied may apply to a court of competent jurisdiction to obtain
such remedy as the court considers appropriate and just in the circumstances.
(2)
Where, in proceedings under subsection (1), a court concludes that evidence
was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it i established that,
having regard to all the circumstances, the admission of it in the proceedings
would bring the administration of justice into disrepute. 12
The Charter of Rights and Freedoms provides protection for individuals and ensures
fairness during legal proceedings. All of the components of the criminal justice system
must operate in such a way as not to violate the rights guaranteed to Canadians in
the C harter. Canadian courts have restricted, extended, or better defined the Charter
ri ghts of citizens. Unfortuna tely, as we'll see throughout the text, the criminal justice
system does not always act in a manner that respects and protects the Charter rights of
Canadian citi zens.
14
Part I: Canadian Criminal Justice: Setting the Framework
NEL
THE CRIMINAL CODE OF CANADA (1892)
Canadian criminal law is enshrined in the Criminal Code of Canada. In the
early days of Canada, each province had its own criminal law. This was a result
of British influence, Canada being part of th e dominion . Attempts to create a
unified criminal law in E ngland in 1878 had failed. At Confederation in Canada
in 1867, then Prim e Minister Sir John A. Macdonald insisted that Canada
should ha ve a single criminal law for the entire country and not replicate the
English model. 13
The first complete Criminal Code was produced in 1892 under th e leadership
of Sir John Thompson who was minister of justice at the time and would later
become prime minister (1892-1894). Among the provisions in Canada's first
Criminal Code were the following:
• If a sentence of death is passed upon any woman, she may move in arrest of
execution on the ground that she is pregnan t. If upon the report of (medical
practitioners), it appears to the court that she is so with child, execution shall be
arrested until she is delivered of a child, or until it is no longer possible in the
course of nature that she be so delivered.
A Sir John Thompson
Criminal Code
Federal legislation that sets out criminal
laws, procedures for prosecuting federal
offences, and sentences and procedures
for the administration of justice.
• Whenever whipping may be awa rded for any offence ... the number of strokes
shall be specified in the sentence and the instrument to be used for whipping
shall be a cat-o'-nine-ta ils unless some instrument is specified in the sentence. 'Nhipping
shall not be inflicted on any female.
• In all cases where an offender is sen tenced to death, the sentence shall be that he be
hanged by the neck until he is dead. 14
The Criminal Code is federal legislation that sets out criminal laws, procedures for
prosecuting federal offences, and sentences and procedures for the administration of
justice. The original version of the Criminal Code elates from 1869. The Criminal Code
is a "living" document in that it has been revised many times since 1892 to refl ect
changes in what behaviours are viewed as criminal and in philosophies of punishment.
The current version of the code is three times longer than the original ve rsion .
CRIMINAL LAW AND CIVIL LAW: WHAT'S THE DIFFERENCE?
As one among several legal systems that exist in Canada, the criminal justice system
T The Canadian Criminal Code, continually under
construction
concerns itself only with offenders who are criminally liable for wrongdoing. The government assumes the responsibili ty for prosecuting th e alleged offender who,
on conviction , is placed under the supervision of corrections authorities. In
contrast, civil law cases are disputes between individuals. The person who feels
wronged brings the legal action, and the "loser" may be required to pay damages . In contrast to criminal cases, th ere is no potential for loss of liberty in a
civil suit.
A key differenc e be tween crim inal law a nd c ivil law relates to the standa rd of proof re qu ired to convict a p e rson of wro ngdoin g. In a c rimina l
tri a l, th e prosec utor must prove th at the defendan t is guilty "beyo nd a
reason able doubt." In a c ivil tri al, li a bili ty is determined by using th e standard of "th e bala n ce of probabiliti es." The standa rd is one of reasonable
proba bility or reasonable be li ef ra th e r th an proof b eyond a reason ab le
dou bt. Beca u se thi s reaso nabl e probability is a much lowe r standa rd of
proof, a d efe ndant might be found n o t guilty in criminal co urt but liabl e
in a civil suit.
\
l
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CHAPTER 1 : The Foundations of Criminal Justice
15
THE CRIMINAL LAW IN A DIVERSE SOCIETY
The application of the criminal law is challenging in a dive rse society such as Canada.
The tension betv,een cultural prac tices in persons' countries of origin and accepted
behaviour in C anadian society are often ac ute.
A key issue is th e extent to which the criminal law can be effective in modifying
cultural practi ces that are viewed as contrave ning the values of C anadian society. A
related issue is whether there are limits to the use of the criminal law and to what
extent it should , or can, be applied in a dive rse society. This issue is highlighted in At
Issu e 1.2.
The crime of h onour killings illustrates the chall enges of di ve rsity. Honour killings are most commonl y defin ed as th e premeditated killing of a famil y member,
most often a woman , who has engaged in certain behaviour, such as pre-marital or
extra-marital relationships, that are believed to have brought sh ame and dish onour
to the famil y. 15 Th ese killings are often planned and may involve a number of famil y
members. 16 The Human Rights C ommission of the U G eneral Assembly and the
Council of E urope's C ommittee of Ministers and other internati onal organizations
AT ISSUE 1.2
SHOULD THE CRIMINAL LAW BE APPLIED TO RELIGIOUS PRACTICES?
In 2017, the Quebec National Assembly passed Bill 62 (2017, c. 19),
An Act to foster adherence to State religious neutrality and, in particular,
to provide a framework for religious accommodation requests in certain
bodies. This legislation requires citizens to uncover their faces while
giving and receiving government services.aThe "religious neutrality law"
requires a woman to have her face uncovered to check out a book from
the library, while riding on transit, when accessing health services, or
when working in a daycare centre, among other scenarios. The law does
provide for a person to ask for religious accommodation on a case-bycase basis, and the final decision is left with front-line public employees.
A poll conducted in Quebec (N = 609) found that 87 percent of
Quebecers supported the legislation.b
The provincial justice minister stated that this requirement was
not directed toward any one religious group: "Having your face
uncovered is a legitimate question of communication, identification
and security."C
A representative of a women 's rights group warned that the law
would "have a discriminatory effect on religious groups who are targeted, in particular women. "d
Legal experts said that the law would most likely be challenged
in court, one lawyer stating, "I have never seen a more flagrantly
unconstitutional law."e The executive director of the National Council
of Canadian Muslims stated, "It's not the business of the state to
be in the wardrobes of the nation.''1In his initial response to the
legislation, the prime minister stated, "I think we have to respect
that this is a debate that's ongoing in society and we respect that
the National Assembly in Quebec has taken a position on this. "9
Among the online comments in response to the legislation were the
following two distinct opinions:
16
Part I: Canadian Criminal Justice: Setting the Framework
Ban the burka in public, period. Believe it or not, we are
entitled to be offended by something that represents the
subjugation and oppression of women and is a barbaric
throwback to the 8th century.
Governments should not legislate how people dress
or worship. The ban won't stand against the Charter's
enshrined freedom of religion .h
QUESTIONS
1. What is your view of this legislation?
2. In your view, does the legislation violate the fundamental rights of
citizens as guaranteed by the Charter of Rights and Freedoms?
3. In your view, is this an instance in which the law is being used as
an instrument of social policy? If yes, should it be?
' I. Peritz. 2017, October 18. "Quebec Bans Face Covering in Public Services, Raising
Worries among Muslims," Globe and Mail. https://www.theglobeandmail.com/news/
national/quebec-bans-face-covering-in-public-services-raising-worries-among-muslims/
articie36638544.
b Ibid.
c G. Hamilton. 2017, October 18. "Quebec Passes Bill Banning Niqab, Burka while
Receiving Public Services," National Post. http://nationalpost.com/news/politics/
quebec-passes-bill-62.
d Ibid.
• Peritz, "Quebec Bans Face Covering in Public Services."
1 Ibid.
g J. Bryden. 2017, October 20. "Mr. Charter Trudeau Offers Only Veiled Criticism
of Quebec Bill 62 Banning Face Coverings," Toronto Sun. http://www.torontosun
.com/2017/10/20/mr-charter-trudeau-wont-condemn-bill-62-quebec-veil-ban.
h Hamilton, "Quebec Passes Bill Banning Niqab."
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CRIMINAL JUSTICE FILE 1.2
THE SHAFIA HONOUR KILLINGS: CULTURE CLASH AND THE LAW
In January 2012, a father, mother, and brother were convicted in the deaths of
four female family members in what was described as "honour killings. " Mohammad
and Tooba Mohammad Yahya and their son Hamed had pied not guilty in the deaths
of four family members who were found in the family 's vehicle submerged in a lock
on the Rideau Canal in June 2009. The victims were Hamed's three sisters and their
father's previous wife from a polygamous marriage. They were subsequently convicted
of first-degree murder and given automatic life sentences with no chance of parole
for 25 years. The Shafias had moved to Canada from Afghanistan 15 years earlier,
and there was evidence of abuse in the family as the father attempted to control his
daughters' social lives and exercise his patriarchal authority. He was particularly upset
that one of the daughters was dating and wanted to move out of the family home.
~
This case ignited an ongoing debate as to whether there should be a separate section ffi
in the Criminal Code for honour killings to highlight their inappropriateness and to deter
this practice in Canada. A research study found that honour killings are on the rise in
°
i
Canada, with 12 victims since 1999.a Opponents to this contend that existing provisions in '-'
the Criminal Code are sufficient and that persons perpetuating honour killings have always ~
received the maximum allowable sentence under law.bThe federal government appears to
Tooba Mohammad Yahya, her husband, Mohammad
have no plan to amend the Criminal Code to insert a provision on honour killings.
Shafia, and their son, Hamed Mohammed Shafia, are
The Shafia case raises a larger issue as to whether there are limits on the ability of
escorted by police officers into the Frontenac County
Court on the first day of trial in Kingston, Ontario, on
the criminal law to change behaviour. See the Media Link, "The House of Shafia," at the
October 20, 2011 .
end of this chapter.
i
• M.P. Robert. 2011 . "Les crimes d'honneur ou le deshonneur du crime: elude des cas canadiens," Canadian Criminal Law Review, 16(1), 49-87.
b Ibid.
Additional sources: Canadian Press. 2017, March 27. "Mohammad Shafia, Convicted in So-Called Honour Killings, Ordered to Pay Wife's Legal Fees," CBC News. http://www
.cbc.ca/news/canada/montreal/mohammad-shafia-legal-fees-1.4043176; Postmedia News. 2015, October 13. "Shafia Parents and Son, Convicted in Honour Killing of Four
Family Members, Seek New Trial ," National Post. http://nationalpost.com/news/canada/shafia-parents-and-son-convicted-in-honour-killing-of-four-family-members-seek
-new-trial.
have taken a stance aga inst honour killings and ha ve urged coun tri es to take ac ti on
against this practice.
There is no offi cial record of the number of honour killings in C anada. One of the
more high-profile cases is presented in C riminal Justice Fil e 1. 2.
SUMMARY
Th e discussion in this c hapter has set out the foundati ons of th e legal system . Crime
was defin ed, and it was noted that there is a social construction of crime, a refl ection
of c hanging times and mores. It was noted that the c riminal law is not static and
th at what behaviour is legislati vely defin ed as criminal can change overnight. There
are instances in which controve rsy arises when th e criminal law is applied to issues
of ethics, mo rality, and rel igiousity. T he criminal law was identified as one type
of public law and the fun ctions of the c riminal law we re set out. Th e rul e of law
and the Charter of Rights and Freedoms are two key parts of th e found ation of the
criminal justi ce syste m . T here are several principl es tha t also provide th e found ation
fo r Canadian law. The role, prin ciples, origins, and appli cation of the c riminal law
we re examined, and a number of case studi es we re presented to illustrate th e dynamic
nature of th e c riminal law as well as the chall e nges of applyi ng the criminal law in a
di verse society.
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CHAPTER 1 : The Foundations of Criminal Justice
17
KEY POINTS REVIEW
1. A critical thinker considers multiple points of view and is fair and open-minded to all
ideas.
2. It can be said that crime is a social construction in that what is considered criminal
behaviour changes based on the social response to the behaviour rather than the
behaviour itself.
3. There are differing views on the origins and application of the criminal law, one that
considers the law and its application as reflection of societal consensus and the other that
emphasizes the role of the criminal law as an instrument of the powerful.
4. The criminal law is one type of public law.
5. The two primary sources of the criminal law are legislation and judicial decisions.
6. The Canadian legal system is a common law system with the exception of Quebec,
which has a civil law system (although the Criminal Code applies to the entire country).
7. The criminal law has a number of functions , including maintaining order, defining the
parameters of acceptable behaviour, and assisting in general and specific deterrence,
among others.
8. There are a number of principles that provide the foundation for Canadian law,
including the two components of a crime: actus reus (the act of doing something) and
mens rea (guilty intent).
9. A key component of the criminal justice system is the rule of law, which was first
established in the Magna Carta in England in 1215 and is composed of a number
of key principles, including that the government, individuals, and private entities are
accountable under the law and that laws must be evenly applied and must protect the
fundamental rights of citizens.
10. Another key component of the foundation of the criminal justice system is the Charter
of Rights and Freedoms.
11. Canadian criminal law is enshrined in the Criminal Code.
12. There are key differences between the criminal law and civil law.
13. The application of the criminal law is challenging in a diverse society such as Canada.
KEY TERM QUESTIONS
1. What is critical thinking (thorough thinking) and how can it assist in the study of the
criminal justice system?
2. What is a crime and what are the two essential requirements for a behaviour to be considered criminal?
3. What is meant by the social construction of crime?
4. Who are moral entrepreneurs and what role do they play in relation to the criminal law?
5. Contrast the value consensus model and the conflict model as explanations for the
origins and application of criminal law.
6. How do substantive law and procedural law differ?
7. What is meant by Canada as having a common law legal system?
8. What role do the following play in the Canadian system of criminal law: (a) precedent,
(b) stare decisis, (c) statute law, and (d) case law.
18
Part I: Canadian Criminal Justice: Setting the Framework
NEL
9. Define criminal law and note its functions.
10. What are the origins and key principles of the rule oflaw?
11. Describe the fundamental freedoms, equality rights, and enforcement provisions of the
Canadian Charter of Rights and Freedoms.
12. Describe the origins and content of the Criminal Code.
CRITICAL THINKING EXERCISE
Critical Thinking Exercise 1.1
The Ever-Changing Criminal Code
I
I
The discussion in this chapter has revealed that what behaviour is a crime has changed
over time, and continues to change.
I
Your Thoughts?
I
1. Can you think of a behaviour that is currently against the law that may become legal in
the future?
2. If so, what factors might come into play that contribute to the change?
3. In your view, should a particular drug that is currently illegal be legalized if it is used
widely?
CLASS/GROUP DISCUSSION EXERCISE
Class/Group Discussion Exercise 1.1
Mass Law Violating and the De Facto Legalization of Criminal Behaviour
Throughout Canadian history, there are examples of behaviours that, while against the
law, were nevertheless engaged in by a substantial number of persons. This is illustrated
by the path to legalization that was followed by alcoho l and marijuana. These substances,
although illegal at the time , were wide ly used. In both cases, and particularly in the
case of marijuana, people convicted of marijuana possession were given criminal
records and even sent to jai l. This continued up through 2017, prior to the federal
government legalizing the substance. For both alcoho l and marijuana, there were
tipping points that ultimately led to their legalization. One contributor was mass
violation of the law.
Your Thoughts?
1. Should mass violation of the law play a role in changing the law? Or should this be the
responsibility of governments?
2. If so, should mass violation be the only determinant?
MEDIA LINK
'The House of Shafia," The Fifth Estate, CBC
2011-2012/the-house-of-shafia .
NEL
ews. http://www.cbc.ca/fifth/episodes/
CHAPTER 1: The Foundations of Criminal Justice
19
REFERENCES
1. D. Ellis. 2006. Becoming a Master Student ( I Ith ed.). ew
York: Houghton Mifflin Company, p. 218.
2. R. Rosenfeld. 2009, December 14. "The Social
Construction of Crime," Oxford Bibliographies. http://
www. oxford bib 1iogra phi es. com/view /doc u men t/o bo
-9780195396607/obo-9780195396607-0050.xml.
3. Ibid .
4.
. Boyd. 2007. Canadian Law. An Introduction (4th ed.).
Toronto: Thomson elson, p. 49.
5. K. MacQueen. 2013 , June 10. "Why It's Time to Legalize
Marijuana," MacLean's. http://www.macleans.ca/news/
canada/why-its-time-to-legalize-marijuana.
6. K. Harris. 2017, March 7. "Federal Government to Axe
'Zombie Laws' from Canada's Criminal Code," CBC ews.
http:/ /www.cbe.ca/news/po l i tics/criminal-code-reform
-zombie-laws-I .4013869.
7. Department of Justice Canada. n.d. "What Is the Law?"
http://www.justice.gc.ca/eng/csj-sjc/just/02.html.
8. Department of Justice Canada. n.d. "Canada's System of
Justice." http://www.justice.gc.ca/eng/dept-min/pub/just/03
.html.
10. "Criminal Law." n.d. Duhaime's Law Dictionary. http://
www.duhaime.org/LegalDictionary/C-Page5 .aspx.
11. J.R. Stoner. 2009. "First Principles-The Timeliness
and Timelessness of Magna Carta." http://www
.firstprinciplesjournal.com/articles.aspx?article= 1307.
12. Department of Canadian Heritage. 2017 . Excerpts from
Canadian Charter of Rights and Freedoms. Reproduced
with the permission of the Min ister of Canadian Heritage
and the Minister of Public Works and Government Services.
The Charter is avai lable online at http://laws-lois.justice
.gc.ca/eng/Const/page-15.html.
13. L. Duhaime. 2014. "1892, Canada's Criminal Code,"
Canadian
Legal History.
http://www.duhaime.org/
Legal Re sou rces/C ri mi nal Law/Law Artie l e-94/1892
-Canadas-Criminal-Code.aspx.
14. Ibid.
15. A.A. Muhammad. 2010. Preliminary Examination of
So-Called "Honour Killings' in Canada. Ottawa: Department
of Justice Canada, p. 2. http://www.justice.gc.ca/eng/rp-pr/
cj-jp/fv-vf/11k-ch!l1k_eng.pdf
16. Ibid .
9. Department of Justice Canada. n.d. "Where Our Legal
System Comes From." http://www.justice.gc.ca/eng/csj-sjc/
just/03.html.
20
Part I: Canadian Criminal Justice: Setting the Framework
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CHAPTER 2
UNDERSTANDING THE
CRIMINAL JUSTICE SYSTEM
After reading this chapter, you should be able to
• Discuss the purpose of the criminal justice system.
• Discuss the roles and responsibilities of the federal government and provincial/
territorial governments, as related to criminal justice.
• Compare and contrast the two models of criminal justice administration.
• Describe the flow of cases through the criminal justice system , including the
criminal justice "funnel. "
• Discuss the role of discretion in the criminal justice system.
• Describe the task environments of the criminal justice system.
• Discuss the issue of ethics in criminal justice.
• Compare the levels of accountability of criminal justice system personnel.
• Discuss the factors that are associated with public confidence in the criminal
justice system.
• Describe what is meant by the "politics of criminal justice."
• Discuss the deterrent value of the criminal justice system .
• Describe the restorative justice approach as an alternative response to persons
in conflict with the law.
THE CRIMINAL JUSTICE SYSTEM
The criminal justice system is generally considered to contain all of the agencies, organizations, and personnel that are involved in the prevention of, and response to, crime;
persons charged with criminal offences; and persons convicted of crimes. It includes
not only criminal justice professionals but also thousands of volunteers who work m
criminal justice agencies and in GOs (non-governmental organizations) and other
not-for-profit groups that deliver programs and services on a contract basis. For example,
these agencies and organizations supervise offenders on bail, assist victims, provide
community-based and institutional programming, and supervise parolees. Generally
speaking, the provinces and territories are responsible for the admin istration of justice.
The criminal justice system includes crime prevention and crime reduction, the
arrest and prosecution of suspects, the hearing of criminal cases by the courts, sen-
Criminal justice
system
All of the agencies, organizations,
and personnel that are involved in the
prevention of, and response to, crime;
persons charged with criminal offences;
and persons convicted of crimes.
tencing and the administration and enforcement of court orders, parole and other
forms of conditional release, and supervision and assistance for ex-offenders released
into the community. These groups include, among others, the John Howard _Society,
the Elizabeth Fry Society, the St. Leonard's Society, and various Indigenous organizations. Provincial governments often contract organizations like these to deliver such
services. In recent yea rs, restorative justice approaches (discussed later in the chapter)
have become part of the criminal justice process as well.
THE PURPOSE OF THE CRIMINAL JUSTICE SYSTEM
There is no one commonly used statement of purpose of the criminal justice system .
Components of such a statement would include the notions of "justice" for all persons, including victims and offenders and the community; respecting the rights of victims and offenders; and ensuring the safety and security of communities. A survey of
Canadians ( r = 4,200) found that 72 percent felt that a primary goal of the criminal
justice system should be separating persons who commit serious crimes from the rest
of society. 1 However, this same survey revealed that a similar percentage of those surveyed identified as a primary goal of the justice system the successful rehabilitation
and reintegration of offenders back into the community. 2 And there was strong support
(69 percent of those surveyed ) for the notion that offenders should be incarcerated only
if alternatives to confinemen t were not appropriate. 3
While historically the criminal justice system has been focused on reacting to criminal behaviour, in recent years there has been an increasing emphasis on prevention of
crime and problem-solving, be it the police address ing the issues surrounding problem
premises, or the activities of problem-solving courts for speciali zed groups of offenders.
A statement of purpose that includes these components and will be used for this
text is: The purpose of the criminal justice system is to prevent and respond to criminal
behaviour while ensuring that rights of victims and offenders are respected, that justice is
achieved, and that communities are safe and sect1re.
THE ROLE AND RESPONSIBILITIES OF GOVERNMENTS
IN CRIMINAL JUSTICE
Each level of government in Canada-federal, provincial/territorial, and municipalplays a role in the justice system. The division of responsibilities between the federal
and provincial governments was spelled out in the Constitution Act, 1867.
The basic division is that the federa l government decides which behaviours constitute criminal offences, while the provincial/territorial governments are responsible for
law enforcement and for administering the justice system.
22
Part I: Canadian Criminal Justice: Setting the Framework
Constitution
Act, 1867
The legislation setting out the division of
responsibilities between the federal and
provincial governments.
NEL
-~L
ote that there are a_ number of unique features of the criminal justice system that
would not be apparent 111 the Constitution Act. The RCMP, for example, are involved
as ,a federal , provincial, and municipal police service (see Chapter 4).
fhe federal government is responsible for the Criminal Code. There is also federal
legislation that targets specific types of criminal behaviour and offenders. The Antiterrorisn~ Act (S.C. 2001, c. 41 ), for example, gives the justice system broad powers
to identify, prosecute, convict, and punish terrorist groups and individuals, while the
Sex Offender Infonnation Registration Act (S.C. 2004, c. IO) established a national sex
offender database containing information on convicted sex offenders .
IS THE CRIMINAL JUSTICE SYSTEM A "SYSTEM"?
In certain scholarly quarters, there is an ongoing debate as to whether the criminal
justice system really is a "system." (Yes, some scholars spend sunny days in July thinking
about these things. ) A number of observers have argued that the criminal justice system
is best described as a "loosely coupled system" within which there are checks and balances. For example, the courts can provide a check on the use of force by police. 4
There are a number of factors that work against the criminal justice system being a
"system" in the true sense of the word: (l) the different mandates of criminal justice
agencies; and (2) a lack of interoperability, that is the inability of hardware and software
from multiple data bases from multiple agencies to "communicate" with one another.
The failure of agencies to share information can have significant consequences for
victims, offenders, and the community. Incomplete materials in an offender's file, such
as risk assessments and in-depth examinations of release plans, can hinder the ability of
a parole board to make an informed decision on an inmate's appl ication for conditional
release. Similarly, the failure of a halfway house to notify parole supervision authorizations in a timely manner of an offender being AWOL can jeopardize the safety of crime
victims and the community. With these caveats in mind, the discussion in this text will
refer often to the criminal justice system.
MODELS OF CRIMINAL JUSTICE ADMINISTRATION:
DUE PROCESS VERSUS CRIME CONTROL
I
Crime control (model
of criminal justice)
I
An orientation to criminal justice in
which the protection of the community
and the apprehension of offenders are
paramount.
I
I
I
r
I
I
I
I
I
Due process (model
of criminal justice)
An orientation to criminal justice in
which the legal rights of individual
citizens, including crime suspects, are
paramount.
Just as there are competing views of the origins and application of the criminal law
(discussed in Chapter l ), there are two competing perspectives on the value systems
underlying the administration of criminal justice-the crime control model and the
due process model. These were first set out over 50 yea rs ago by the late Herbert L. Packer,
a law professor at Stanford University. 5 In their pure form , the models conflict with one
another. In practice, the criminal justice system reflects elements of both models. And
which model is emphasized at any point in time will depend upon a variety of factors, not
the least of which is the perspective of the government of the day. See Table 2.1.
There is a fine balance to be struck between (l) giving criminal justice agencies such
as the police and prosecutors the unfettered power to apprehend and prosecute offenders
(crime control), and (2) protecting citizens from the potential abuses of that power (due
process). At various points in time, the political climate of a jurisdiction may determine
which model is predominant (see the section "The Politics of Criminal Justice").
Adversarial system
AN ADVERSARIAL SYSTEM OF CRIMINAL JUSTICE
A system of justice that is based on two
opposing sides-the prosecution and the
defence-arguing the guilt or innocence
of a person before a judge or jury.
The Canadian criminal justice system is an adversarial system. This means that the
advocates for each party-in criminal cases, the defence lawyer and prosecutorpresent their cases before a neutral judge or a jury. The standard that must be met by
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CHAPTER 2: Understanding the Criminal Justice System
23
TABLE 2.1
THE CRIME CONTROL AND DUE PROCESS MODELS OF CRIMINAL JUSTICE ADMINISTRATION
I
rCrime Control Model
I Due Process Model
Primary purpose of the criminal justice system is protection of
the public through deterrence and incapacitation of offenders.
Primary purpose of the criminal justice system is to ensure that there is equal
justice for all citizens, regardless of wealth, social status, or political connections.
Criminal offenders are responsible for their behaviour.
Criminal offenders are responsible for their behaviour.
The administration of justice should be swift, certain, and
efficient.
The administration of justice must be deliberate and ensure procedural fairness.
Criminal justice system should focus on the rights of victims
rather than protecting the rights of criminal defendants.
The criminal justice system should focus on ensuring that the rights of criminal
defendants are protected and that the powers and discretion of criminal justice
decision-makers are structured and confined.
There is a strong presumption of guilt.
There is a presumption of innocence and the onus is on the criminal justice system
to prove guilt. The possibility exists that a defendant may be factually guilty but
legally innocent if proper procedures and rights of the accused have been violated.
Model reflects conservative values.
Model reflects liberal values.
the prosecution is proof beyond a reasonable doubt; that is, "doubt based on reason and
common sense, which must be logically based upon the evidence or lack of evidence"
and which upholds the presumption in law that a person is innocent until they
6
are proven guilty. This is a much higher burden of proof than is required in civil
cases . In an adversarial system, there is a presumption of innocence. The burden is
on the prosecution to prove that the accused is guilty, not the responsibility of the
accused to prove their innocence.
,
Beyond a reasonable
doubt
The standard that must be met to convict
a defendant in acriminal case, which
requires that the facts presented provide
the only logical explanation for the crime.
This system is in contrast to the inquisitorial system of justice that operates in many
jurisdictions in continental Europe. In this system, a judge, or panel of judges, assumes
the role of investigating the crime. Our adversarial system has many rules of procedure
and evidence governing criminal prosecutions. Some of these common-law rules have
been enshrined in the Charter of Rights and Freedoms.
A basic premise of the adversarial system is that the truth will emerge from the materials presented by the defence and Crown . Another premise is that the judge or jury will
be a neutral third party and will make decisions solely on the evidence, not subject to
any other influence.
Critics of the adversarial system contend that the process encourages the parties to
present a distorted version of events. There are also concerns with the quality of legal
representation for many defendants and the ability of the criminal justice system to
solve problems rather than merely react to them. This latter concern has provided
the impetus for the development of specialized courts, which focus the approach
of therapeutic jurisprudence in a problem-solving framework in which court personnel collaborate with the police, social services, and mental health professionals
(see Chapter 7). The attempt to improve the problem-solving of the justice system
has also led to the development of various restorative justice approaches, which are
discussed later in the chapter.
I
(
\
The overrepresentation of Indigenous persons and others in sentenced populations
raises questions as to whether an adversarial system of justice provides a level playing
field and suggests that certain accused persons may be at a disadvantage in the criminal
justice system .
24
Part I: Canadian Criminal Justice: Setting the Framework
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THE FLOW OF CASES THROUGH THE CRIMINAL
JUSTICE SYSTEM
Figure 2. 1 illustra tes how cases proceed through th e criminal justice system. You will
wa nt to refer to this figure often as you read the fo llowing chapters. T he figure is useful
in telling us who is where in the system at any given point in the process; however, it
provides littl e insight into the ac tual dynamics of criminal justice- that is, how decisions
are made by justi ce personnel, th e challenges they face in preventing and respondi ng to
crime, the role of crime victims, and th e effecti veness of efforts to prevent and respond
to cri me, and address th e needs of victims, offend ers, and the communi ty. T hese and
oth er issues will be addressed in later chapters.
T he criminal justice system responds to law breaking with inves tigation, prosec ution,
and (when appropriate) pu nishment. It does not, however, respond to every breach of
the law. Only a portion of th e criminal acts committed come to the attention of the
police, and a much small er percentage of these are heard in the courts or lead to a
sentence of incarceration. In reality, as the discuss ion in C hapter 8 will reveal, most
cases are resolved with a guil ty plea (often th rough plea negotiation) and few cases
go to trial. So dramatic is the attriti on of cases in Canadian cri minal justice that it is
Incident (perceived as criminal
and reported to police)
{
I
Charge Not Laid (unfounded)
~
Police System
~ Charge Not Laid ~ounded)
Alternative Measures (e.g.,
pre-charge, past-ch..-ge,"'
alternative court options)
Charge Laid (except n BC,
NB, and Quebec, where
Crown lays the charges)
Exits
System
Criminal Court System
Prosecution Choices (plea bargain, stay
proceedings, withdraw charge, proceed
totriaQ
Decision by Judge
I
()( Judge and Jury
~I
Not Guilty
Sentence
I
Fine/Forfeiture
I
I
Dangerous
Offender
Probation "'
Condrrional
Sentence
Suspended
Sentence
Incarceration
Long-Term
Supervision
Order
Corrections and Parole System
Prison
Probation "' Correctiooal
Sentence (ProonciaV
Territ()(ial Corrections)
'
ProonciaVTemt()(ial
lnstrrution (<2 yeaIS)
Federal Institution
(>2 years)
I
T
C()(nmunrry Release Eligibilrry
I
FIGURE 2.1 •
I
Flow of Cases through the Criminal
Justice System
I
I
I
• Day Parole atter
- Full Parole after
¼sentence (Prov.ITerr.)"' 6 months (Fed.)
¼sentence (Prov/Terr./Fed.)
- Statut()(j Release atter
J
j sentence (Fed.)
j sentence (Prov JTerr.)
- Remission Release atter
I
I
I
I
I
Source: From Roberts/Grossman.
Criminal Justice in Canada, 3E. © 2008 Nelson
Education Ltd. Reproduced by permission.
www.cengage.com/permissions.
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' - - - - - - - - ~ - - - - S e n t e n c e C()(npleted
j -------·
Su=~der
Sentence Completed
CHAPTER 2: Understanding the Criminal Justice System
25
• FIGURE 2.2
Total Number of Incidents
Reported to Police 2014:
2,052,191
Cases with Guilty Findings in
Adult Criminal Court 2013-14:
228,328
The Criminal Justice Funnel
Source: Criminal Justice Funnel. 2017. Corrections
and Conditional Release: Statistical Overview, p. 13.
Public Safety Canada. http://www.publicsafety
.gc.ca/cnt/rsrcs/pblctns/2012-ccrs/2012-ccrs-eng
.pdf. This information was reproduced with the
permission of the Minister of Public Safety and
Emergency Preparedness Ganada, 2017.
Sentenced Admissions to
Provincial/ferritorial Custody 2013-14:
64,604
Warrant of Committal Admissions to
Federal Jurisdiction 2014-15:
4,781
often represented graphically by a funn el. See Figure 2.2 . This raises the issue as to
how adversarial the criminal justice system reall y is, particularl y when most cases are
decided without a trial and , as we will see in Chapter 8, are settled outside of court
through negotiations between the prosecutor and defence lawye r. The attrition of cases
in the criminal justice process is furth er illustrated in Figure 2.3, whi ch shows spousal
assault cases that are reported by victims.
Actual Incidents
Unknown
Self-Reported Incidents (2009 GSS)
942,000 (335,697 victims)
Police-Reported Incidents (2009 UCR)
46,918
Incidents Cleared by Charge
34,859 (33,809 victims)
Court Cases
21 ,559
Convictions
11 ,373
26
Part I: Canadian Criminal Justice: Setting the Framework
• FIGURE 2.3
The Attrition of Reported Spousal
Assault Incidents, 2009
Note: GSS stands for the General Social Survey.
UCR stands for Uniform Crime Reporting Survey.
Source: An Estimation of the Economic Impact
of Spousal Violence in Canada, 2009, Figure
3.1. Spousal Violence Attrition Pyramid, http://
www.justice.gc.ca/eng/rp-pr/cj-jp/fv-vf/rr12_7/
rr12_7.pdf, Department of Justice Canada,
2012. Reproduced with the permission of the
Department of Justice Canada, 2014.
NEL
THE DYNAMICS OF CRIMINAL JUSTICE
~ k~y feature of criminal justice research is documenting the dynamics of the criminal
I
Justice process. This involves exploring how the system works in practice-that is, how
police officers exercise discretion, how judges make sentencing decisions, and the factors that influence the release decisions of parole boards .
I
I
The materials in this text are designed to highlight the activities of individual justice
personnel as well as how justice system organizations and agencies carry out their mandates. In a democratic society, there will always be tension between the efforts of the
State to maintain order and to ensure the rights of citizens. This tension is reflected in
the crime control and due process models of justice discussed in the previous section.
The actions and decisions of individual criminal justice personnel and of their agencies
are discussed in the following chapters.
To understand the criminal justice system requires a perspective that extends beyo nd
organizational charts and legislative frameworks. A number of observers have pointed
out that there has been little progress in developing theories of criminal justice clue in
part to the complexity, diversity, and scope of the criminal justice system. 7,8 Traditionally,
scholars have studied the three components of the justice system-the police, courts,
and corrections-and have not focused on the development of unifying theories.
In studying the operation of the criminal justice system, there are a number of different facets that can be examined, including: (1) the behavior of criminal justice personnel, such as police officers; (2) the activities of criminal justice organizations, such
as correctional institutions services; and (3) the aggregate characteristics of the criminal
justice system and its components in the context of larger societal issues, such as racism
and inequality.9
THE ROLE OF DISCRETION IN THE CRIMINAL JUSTICE SYSTEM
Discretion
I
The power or right to decide or act
according to one's own judgment.
I
I
A key factor in understanding how cases flow through the criminal justice system is
discretion. Criminal justice personnel respond to a wide variety of events in a wide
variety of settings in conditions that often are not ideal. They carry out their tasks within
the framework of written laws and policies, but they also exercise considerable discretion when making decisions. This can lead to inconsistencies in how laws are applied,
how cases are processed in the courts, and what decisions are made about offenders by
police officers, judges, and correctional authorities.
Historically, the justice process has been structured in a way that criminal justice professionals have a considerable amount of discretion in carrying out their roles. However,
this appears to be changing. The increasing focus on risk management and risk assessment in corrections, for example, has diminished the discretion exercised by probation
officers in supervising persons on probation. IOThis is discussed in Chapter 9.
I
Many factors influence criminal justice personnel when they make discretionary
decisions. At the centre of all these influences is the decision-maker, a human being
who brings to his or her work a unique combination of education, training, personal
experiences, and perhaps religious beliefs. It would be naive to think that life experiences and community pressure do not sometimes influence the decisions made by
criminal justice personnel. For example, the decision-making of parole boards has
come under intense scrutiny in recent years, due in large part to several high-profile
cases in which offenders released by parole boards committed heinous crimes.
Even if discretion were not a factor, different justice system personnel would
often make different decisions in a given situation. This is referred to as disparity
l
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CHAPTER 2: Understanding the Criminal Justice System
27
Chinatown in Montreal
Vancouver's poverty-ridden Downtown Eastside
Qikiqtarjuaq, Nunavut, population 520
1
:,:
<=
I
0
~
a:
0..
~
I
w
:,:
• What do each of the photos suggest to you abo; the task environment and the demands on and challenges for the criminal justice system?
in decision-making and is clue, in large measure, to the considerable professional
autonomy of criminal justice personnel. For example, a sentencing judge may ~rder
probation, even though another judge would have sent the same offender to _pnson.
Similarly, a parole applicant's chances for release may depend on the compos1tion of
the parole board panel that particular day.
THE TASK ENVIRONMENTS OF CRIMINAL JUSTICE
Another concept that is helpful in understanding the dynamics of the criminal justice
system is the task environment. A task environment is the cultural, geographic, and
community setting in which the criminal justice system operates and in which criminal
justice personnel make decisions. These environments range from small Inuit villages
in unavut to inner-city neighbourhoods in major urban centres, such as Toronto.
The characteristics of a particular task environment influence the types of crime
that justice system personnel are confronted with, the decision-making options that
are available, the effectiveness of justice policies and programs, and the potential for
developing community-based programs and services. In addition, the same urban area
may contain a variety of task environments, ranging from neighbourhoods with a high
concentration of shelters for the homeless, to neighbourhoods with large populations
of recently arrived immigrants, to exclusive, high-income neighbourhoods. Unique
challenges are faced by criminal justice personnel in remote and northern areas of
the country, where there are few resources and community-based programs for victims
and offenders.
Crime manifests itself differently in remote Arctic villages than in Vancouver's skid
row or in a wealthy suburban Montreal neighbourhood (tl1e highest rates of violent
crime are in Canada's ortl1). As these factors vary, so too may community expectations of the justice system and the relations between the justice system and the citizens
it serves.
Task environment
The cultural, geographic, and community
setting in which the criminal justice
system operates and justice personnel
make decisions.
ETHICS IN CRIMINAL JUSTICE
Closely related to tl1e discretion and decision-making of personnel in the criminal justice
system is the issue of ethics . Etl1ics can be defined as "tl1e foundation ofknowledge that
describes right/wrong or better/worse ... and applies to issues of harm/care and fairness/
reciprocity" (www.ethicsdefined.org). There are many factors that enter into judging ethical acts, as events and situations rarely present a right/wrong scenario. Most situations
fall into a "grey" area- "tl1e space between black and white" (www.ethicsdefined.org).
The focus on ethics highlights the presence of moral issues in the criminal justice
system. Recall the characterization earlier in the discussion tl1at tl1e criminal justice
system is, first and foremost, a human (rather tl1an scientific) enterprise. The foundation
28
Part I: Canadian Criminal Justice: Setting the Framework
Ethics
The foundation of knowledge that
describes righVwrong or better/worse
and applies to harm/care and fairness/
reciprocity.
NEL
of the system is the criminal law, enacted by legislators; criminal justice agencies are
staffed b_y person_nel with a range of professional qualifications; and persons who
~ecome mvolved 111 the justice system present a broad range of issues, including mental
illness and addiction .
. The criminal justice system is first and foremost a human enterprise; that is, the decisions of police officers, judges, probation/parole officers, and parole boards are often
based not on scientific formulas but on professional judgment, experience, and intuition.
These personnel may find themselves in ethical dilemmas, which are sihiations in which
criminal justice personnel are presented with difficult choices in carrying out their responsibilities.11 Combined with the discretion that is given to criminal justice personnel,
including police officers, judges, probation and parole officers, and others who work in
the justice system, it is not surprising that ethical considerations are ever-present.1 2
ACCOUNTABILITY IN THE CRIMINAL JUSTICE SYSTEM
A key to an effective criminal justice system is accountability of criminal justice officials
and agencies. Officials must adhere to the rule of law and th e law generally. Justice
system personnel may be subject to criminal and/or civil prosecution as well as to both
internal and external review bodies, although , as the materials in Table 2.2 illustrate,
some officials in the justice system are subjected to more oversight than others .
Criminal justice agencies may also be held accountable by crime victims and
offenders through the civil courts. Crime victims may sue to recover damages from
justice agencies that did not fulfill their mandate to protect, and offenders and suspects
may sue to recover damages for actions taken by criminal justice personnel. Examples
of such actions include excessive force by police, wrongful convictions by the criminal
courts, and the failure of systems of corrections to manage the risk posed by offenders in
the community who subsequently inflicted harm on victim(s) .
A landmark case with respect to the civil liability of a criminal justice agency was
the case of Jane Doe v. Toronto (Metropolitan) Commissioners of Police ( 1998 CanLII
14826 (0 SC)). In this case, Ms. Doe sued the Police Services Board, arguing that
her victimization by a serial rapist was due to the negligence of the police in informing
her that a rapist was active in her neighbourhood . The presiding judge in the Ontario
Court (General Division) agreed that the police were negligent in failing to warn Jane
(
I
I
TABLE 2.2
ACCOUNTABILITY OF CRIMINAL JUSTICE PERSONNEL: A COMPARISON
r-
I
tntaraal,and~ ~
Police officer
Internal and external accountability; civilian oversight; subject to criminal charges and civil suits
Crown counsel
Subject to internal review; no independent oversight; generally immune from prosecution and being required
to testify in court
Defence lawyer
Subject to review/sanction by professional association; no independent oversight
Judge
Provincial/territorial judges subject to internal review; federal judges subject to review/sanctioning/dismissal
by the Canadian Judicial Council; eight public inquiries into the behaviour of judges from 1971 to 2009;
removal rare; no external independent oversight for any judges
I
Probation officer
Subject to internal review; generally immune from prosecution; no external independent oversight
I
Parole board member
Subject to internal review; generally immune from prosecution; no external independent oversight
Parole officer
Subject to internal review; generally immune from prosecution; no external independent oversight
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CHAPTER 2: Understanding the Criminal Justice System
I
29
Doe and other women in the area . The Toronto Police were ordered to pay $220,000
13
to Ms. Doe for pain and suffering and medical interventions. Subsequent cases over
the yea rs have used this precedent in finding the criminal justice system negligent in
fulfilling its responsibilities to the public.
_ _
The issue of accountability and oversight is a key theme in the text and 1s discussed
throughout the text.
PUBLIC CONFIDENCE AND TRUST IN THE CRIMINAL
JUSTICE SYSTEM
For the criminal justice system to be effective requires that the public have confidence
and trust in it. Research suggests that Canadians may have only a "moderate" level of
confidence in the criminal law and that many persons have a general lack of trust in
the system.14 This is due, in part, to the fact that most Canadians have very little understanding of the criminal justice system and how it works. 15 They also tend to overestimate the amount of crime and the levels of violent crime. One study ( = 4,200) found
that those surveyed believed that almost 50 percent of all crime involved violence,
despite the fact that the actual figure is much lower. 16 A report of the Canadian Bar
Association found widespread distrust of the justice system, which was viewed as being
only "for people with money, arbitrary, difficult to navigate and inaccessible to ordinary
people .. . and even unfair." 17
Public confidence and trust are increased if the criminal justice system is considered
to be legitimate, that is, "the belief that authorities, institutions, and social arrangements
are appropriate, proper, and just." 18 The justice system must be viewed as ensuring the
security of the community while at the same time protecting the rights of citizens.
Research indicates that Canadians place a high value on the criminal justice system
"getting it right" (not convicting innocent persons; see Chapter 8) and on the system
having clear rules and guidelines. 19
The extent to which the general public views the justice system as legitimate will
affect the levels of confidence in the system and the extent to which the public will support specific initiatives and participate in partnerships. When persons or communities
lose confidence in the ability of the justice system to protect them , this may result in
vigilantism. This is discussed in Chapter 6.
For example, legitimacy allows the police to effectively respond to crime and disorder and to rely upon public cooperation in their efforts. 20 Persons who do not view
the police as legitimate are less likely to comply with the directives of police officers
and to obey the law generally. 21 They may also be less likely to become involved in
collaborative efforts to improve relationships between the police and the community. 22
Similarly, in corrections, if the persons in conflict with the law perceive that they are
being treated in a fair and just manner, the effectiveness of correctional interventions
may be improved. The discussion in this text will reveal that, for a variety of reasons,
certain groups have not viewed the justice system as legitimate.
Figure 2.4 identifies some of the negative consequences when communities depend
on the justice system to respond to and solve a variety of problems. The vicious circle
that results from unmet expectations is depicted in Figure 2.5.
In the words of one observer, the hidden message in Figure 2.5 is that "paid professionals are seen as care providers and problem solvers, inferring that community groups
do not need to bother. .. [P]rofessionals compound this sense by operating on assumptions about their own capacity for defining problems and coming up with remedies,
rejecting citizens as problem definers and solvers." 23
30
Part I: Canadian Criminal Justice: Setting the Framework
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FIGURE 2.4 •
Public Dependence 011 the
Crim111al Justice System
Consequences of Overdependence
on the Criminal Justice System
Source: C.G. Nicholl. 1999. Community Policing,
Community Justice, and Restorative Justice:
Exploring the Links for the Delivery of a Balanced
Approach to Public Safety. Washington, DC: U.S.
Department of Justice, Office of Community
Oriented Policing Services.
Public fails to learn
what role it
can play
THE MEDIA AND PUBLIC ATTITUDES TOWARD THE CRIMINAL
JUSTICE SYSTEM
For most Canadians, news media stories are the primary source of information about
the criminal justice system, although there are other sources, including personal experience, movies, and shows accessed on television or the Internet. 24 ,25 The public seems
to have an insatiable appetite for crime and chaos; witness the success of the television
drama CSI and its various spin-offs. Crime and police shows produced in Canada and
the United States consistently attract the largest viewing audiences. These shows, however, may oversimplify complex issues of crime and criminal justice. The media tend
to be biased toward sensational crimes and to simplify crime and justice issues, and the
public for its part tends to generalize from specific events.
The tendency of the media to focus on sensational cases, combined with the failure
of criminal justice agencies to educate the populace, contributes to an uninformed and
misinformed public. For example, the public overestimates the number of offenders
who are released on parole, their revocation rates, and the recidivism rate generally. 26
Community sentiment about offenders and the justice system are often expressed
through interest groups that lobby for more severe sanctions for criminal offenders,
longer periods of incarceration , and more stringent requirements for release.
Community residents, for example, are often very vocal in opposing offenders who have
been released from prison taking up resident in their neighbourhood. This is discussed
in Chapter 12.
I
l
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I
Dependence on
the police and
justice system
FIGURE 2.5 •
I
Consequences of Unmet
Expectations
l
I
I
I
I
I
l
I
Source: C.G. Nicholl. 1999. Community Policing,
Community Justice, and Restorative Justice:
Exploring the Links for the Delivery of a Balanced
Approach to Public Safety. Washington, DC: U.S.
Department of Justice, Office of Community
Oriented Policing Services.
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Expectation of safety
being delivered
Expectation
not met
Crime
L_
Fear persists
Clamour for more
justice interventions,
including tougher
sentencing
CHAPTER 2: Understanding the Criminal Justice System
I
31
Findings from studies that have examined efforts to involve and educate the public
about the criminal justice system have been mixed. An evaluation of the effectiveness of
the federal government initiatives designed to engage and educate the general public on
issues related to corrections was unable to determine whether these initiatives improved
public confidence in the criminal justice system. 27 Other studies have found that programs and materials designed to provide community residents with factual information
in crime and the criminal justice system resulted in higher levels of confidence in the
system.28 This suggests that public confidence in the criminal justice system is a complex, multi-faceted notion .
THE POLITICS OF CRIMINAL JUSTICE: THE AGENDA OF THE
FEDERAL CONSERVATIVE GOVERNMENT (2006-15)
Politics can have a significant impact on the criminal justice system. An excellent case
example of this is provided by the legislative agenda of federal Conservative government
(2006-15 ). When in power, the Conservatives adopted an American-style, "get tough,"
crime control approach to offenders. 29 This approach was a radical departure from
the more liberal model of corrections practice that had prevailed in Canada for many
decades under successive Liberal governments. The liberal model was centred on treatment and rehabilitation and a view that the criminal justice system could address the
underlying reasons why persons came into conflict with the law.
In fall 2015, the Liberal party won the federal election and has since indicated it
would review many of the above-noted initiatives. In late 2016, the federal government
announced that it was exploring the possibility of introducing exceptions to mandatory
minimum sentences and reinvesting in judges the discretion in sentencing. 30 As of
2017, there had been more than 100 constitutional challenges to mandatory minimum
penalties, and the courts had overturned several of them. 31
In the words ofone legal observer, the shift from the position of the federal Conservative
government to that of the Liberal government served to "swing the balance away from
the Conservative view that crime is a moral problem to a more modern and realistic
view that crime relates to poverty and mental illness and marginalization." 32
IS THE CRIMINAL JUSTICE SYSTEM EFFECTIVE?
In its present state, by every measure that matters, the criminal justice system is
failing to deliver what can fairly be expected of it. 33
In 2016, a study examined the performance of the criminal justice system in all of the
provinces and territories on five major objectives: ( 1) public safety, (2) support for victims
of crime, (3) cost and resources, (4) fairness and access to justice, and (5) efficiency. The
results are presented in Table 2.3.
A key theme in the following chapters is the effectiveness of the criminal justice
system . There are many ways that the effectiveness of the criminal justice system
can be assessed. Some of the ways include the following issues, which are addressed
throughout the text:
• public confidence and trust in the system
• the ability of the system to prevent and respond to crime
• the extent to which the system addresses the needs of crime victims and their families
• whether the system is successful in addressing the needs of persons who come into conflict with the law, while at the same time managing the risk they may present to the
community
32
Part I: Canadian Criminal Justice: Setting the Framework
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TABLE 2.3
PERFORMANCE OF THE CRIMINAL JUSTICE SYSTEMS IN THE PROVINCES AND TERRITORIES·
OVERALL RANKING AND GRADES
.
1Province --
Rank
PE
1
NL
2
NB
3
PO
4
NS
5
AB
6
ON
BC
SK
NU
NW
7
8
9
10
11
MN
12
YK
13
-Public Safaty B+
B
B+
B
B
C+
B
C+
C
C
C+
C+
C
SUpport forVlcllma
B+
B+
C+
C+
B
B
B
C
C+
--Cost and Resources Fairness and Access Efflclency --;....7
B+
C+
B+
B
C+
B+
B
B
C
F
F
F
F
C
D
F
F
B
B+
B
B+
B+
C
C+
C+
C+
A+
B+
C+
B+
A
B
B
C+
C+
C+
C
B
B
A
A
C
B+
B+
B
B
B
i
I
B
C+
C+
C+
C+
C+
C
C
I
I
I
I
C
QUESTIONS
1. What is the report card for your jurisdiction?
2. What current incidents and issues in your jurisdiction might reflect the grades that were received for the various performance measures?
Source: B. Perrin and R. Audas. 2016. Report Gard on the Criminal Justice System: Evaluating Canada's Justice Deficit. Toronto: MacDonald-Launer Institute, p. 4. Reprinted by permission
of the Macdonald-Laurier Institute.
• the effectiveness of specific policies and programs, as measured by evaluation studies
• adherence of the system to the rule of law and the Charter of Rights and Freedoms
• the extent to which the system treats all persons fairly under the law, without prej udice
or discrimination
I
I
These are only a few of the possibl e measures of effecti veness. See Critical Thinking
l
I
Exercise 2.1 at the encl of the chapter.
'
ARE THE CRIMINAL LAW AND THE CRIMINAL JUSTICE
SYSTEM A DETERRENT?
An important question is whether the criminal law and the criminal justice system serve
as a deterrent to criminal behaviour. Studies of the deterrent effect of the criminal law
suggest that the law can serve as a deterrent only when certain conditions are present:
( l ) People must be aware that there are legal sanctions that will be applied if they engage
in certain behaviours; (2) there must be certainty of punishment; and (3) the sanction
must be applied swiftly when a crime is committed.34 Most Canadians are not involved
in criminal offending, but there are a va riety of reasons why people choose not to violate
the law. These include pressures to conformity-that is, from family, employment, and
peers. The criminal would not be ranked among the top reasons, if it were ranked at all.
For those who are intent on committing crime, it is likely that the criminal law and
the criminal justice system offer little in th e way of deterrence. There is neither certainty nor swiftness of punishment. The cl earance, or "catch ," rate for many types of
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CHAPTER 2: Understanding the Criminal Justice System
33
crime is quite low. The imposition of punishment is often far from swift. The criminal
justice system is based on an adversarial model that incorporates many elements of due
process. Summing up a review of the research on deterrence, one scholar concluded,
"The empirical evidence leads to the conclusion that there is a marginal deterrent
effect for legal sanctions ... it is very difficult to state with any precision how strong a
35
deterrent effect the criminal justice system provides .... "
It is also unlikely that the criminal law and the criminal justice system are a deterrent
to persons with mental illness, addiction issues, or other impairments or disabilities.
Still others are caught in situations of poverty and are marginal to mainstream society.
A small er percentage are driven by the prospect of financial gain, such as persons
involved in organized crime.
Historically, the response of the system has often been slow and deliberate. Months,
or even yea rs, would pass before a determination of guilt or innocence was made and
the appeal process was exhausted. This has likely changed with the decision of the
Supreme Court of Canada (SCC) in 2016 in the case of R. v. Jordan (20 16 SCC 27).
This case set specific time limits on the disposition of cases after charges are filed. The
implications of this case are discussed in Chapter 7.
EVIDENCE-BASED POLICIES AND PROGRAMS
The effectiveness of the criminal justice system also turns on the extent to which legislation, policies, and programs are evidence-based -that is, have been shown by research
to be effective in achieving specified objectives. Unfortunately, as the discussion in this
text reveals, too often legislation, such as the imposition of mandatory minimum sentences, and policies and operations of the police, courts, and corrections fall far short of
Evidence-based
practices
Policies, strategies, and programs that
have been shown by research to be
effective in achieving specified objectives.
evidence-based practice.
RESTORATIVE JUSTICE: AN ALTERNATIVE
APPROACH TO CRIMINAL JUSTICE
Concerns about the effectiveness of the traditional adversarial system of criminal justice
and a variety of other influences have led to the search for alternative ways to respond to
people in conflict with the law. Restorative justice provides an alternative framework for
responding to criminal offenders. It focuses on problem-solving, addressing the needs
of victims and offenders, involving the community on a proactive basis, and fashioning
sanctions that reduce the likelihood of reoffencling. It is based on the principle that
criminal behaviour injures not only victims but also communities and offenders, and
that efforts to address and resolve the problems created by criminal behaviour should
involve all of these parties.
Restorative justice takes a problem-solving approach that seeks to address the
underlying causes of criminal behaviour, the harm clone, and to reduce the likelihood of reoffencling. Offenders are required to acknowledge and assume responsibility for their behaviour, and there is an effort to create a "community" of support
and assistance for the victim and the offender, as well as for the long-term interests
of the community.
Restorative justice is not a specific practice, but rather a set of principles that provides
the basis for a commun ity and the justice system to respond to crime . Key notions
in restorative justice are healing, reparation and reintegration, and the prevention of
future harm. 36 The use of restorative justice is not confined to the criminal justice
system. It is used in schools, workplaces, and a variety of other settings. Check out the
34
Part I: Canadian Criminal Justice: Setting the Framework
Restorative justice
A problem-solving approach to
responding to offenders based on the
principle that criminal behavior injures
victims, communities, and offenders,
and that all of these parties should be
involved in efforts to address the causes
of the behaviour and its consequences.
NEL
FIGURE 2.6 •
The Relationships of
Restorative Justice
Source: T.F. Marshall. 1999. Restorative Justice:
An Overview. Home Office Occasional
Paper 48. London: Home Office. Reprinted by
permission of the Home Office under the terms of
the Open Government Licence (OGL). http:
//www.nationalarchives.gov.uk/doc
/open-government-licence/version/2/.
YouTube video "Restorative Resources: Restorative Justice in Schools" (www.youtube
.com/watch?v=9pYuA3o6WuU). Figure 2.6 depicts the relationships among the various
parties that may be involved in a restorative justice approach.
The concept of restorative justice is best illustrated by comparing it with the principles of retributive justice, upon which the adversarial system of criminal justice is
based. The key differences are listed in Table 2.4.
TABLE 2.4
THE PRINCIPLES OF RETRIBUTIVE JUSTICE AND RESTORATIVE JUSTICE
I
I
I
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I
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I
-
Retributive Justice
-
Restorative Justice
Focus
Focus on establishing blame and guilt
Focus on problem-solving, obligations, and the future
Stigma
Stigma of crime permanent
Stigma of crime removable
Redemption
No encouragement for repentance and forgiveness
Possibilities for repentance and forgiveness
People
Dependence upon professionals; experts; non-residents
Direct involvement by participants; local participants
Process
Adversarial; State versus offender; victim ignored,
offender passive
Consensus; community versus problem; victim's and offender's
roles recognized in both problem and solution: victim rights/needs
recognized; offender encouraged to take responsibility
Issues
Laws broken
Relationships broken
Accountability
Offender accountability defined as taking punishment
Offender accountability defined as understanding impact of action
and helping decide how to make things right
Community
Community represented abstractly by the State
Community as facilitator
Tools
Punishment/control
Healing/support
Procedure
Fixed rules
Flexible
l
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:
I
Source: Adapted from Canadian Resource Centre for Victims of Crime. 2011 . Restorative Justice in Canada: What Victims Should Know. http://www.rjlillooet.ca/documents/restjust.pdf,
p. 3. Reprinted with permission from the Canadian Resource Centre for Victims of Crime.
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CHAPTER 2: Understanding the Criminal Justice System
35
>t
Police
Pre-charge
t t t>
Crown
Post-charge
Pre-conviction
Corrections
Courts
Post-conviction Post-sentence
Pre-sentence Pre-reintegration
Integration
• FIGURE 2.7
Restorative Justice: Entry Points
in the Criminal Justice System
Source: 7/Je Effects of Restorative Justice
Programming: A Review of the Empirical, 2000,
Figure 2.1, p. 7. Entry Points in the Criminal Justice
System, http://www.justice.gc.ca/eng/rp-pr/csj-sjc/
jsp-sjp/rrO0_16/rrO0_16.pdf. Department of Justice
canada, 2000. Reproduced with the permission of
the Department of Justice Ganada, 2017.
The primary objectives of restorative justice are to full y address the needs of victims
of crime and to prevent reoffending by reintegrating offenders back into the co'.nmunity. Regardless of the specific restorative justice approach, the proces~ ends w_1th an
agreement on how the offender will address the harm caused by the ~n'.ne. Thi~ '.11ay
include a written or verbal apology, the payment of restitution to the v1chm, prov1S1ons
to assist the offender in changing his or her behaviour (e.g., attending a drug treatment
program), and/or performing service to the community.
37
ENTRY POINTS FOR RESTORATIVE JUSTICE IN THE CRIMINAL
JUSTICE SYSTEM
There are a number of entry points in the criminal justice system where restorative justice approaches can be used : police (pre-charge), Crown (post-charge), court (post-convictions/pre-sentence), corrections (post-sentence), and following sentence expiry.
Circles of Support and Accountability (COSAs), for example, involve community residents and justice and social service personnel working with high-risk sex offenders who
have completed their sentence but are still in need of assistance. See Figure 2.7.
Restorative justice initiatives are discussed throughout the text. These include victimoffender mediation, circle sentencing, community holistic healing programs, and family
group conferences. There are examples of restorative justice programs operating in rural,
suburban, and urban communities. There are critical differences among the various
models of restorative, including their mandate and relationship to the formal adversarial
system, the role of the crime victim and other participants, and the procedures for preparation for the event and for monitoring and enforcing the agreement. 38,39
SUMMARY
This chapter has highlighted a number of important considerations in the study of the
criminal justice system. The purpose of the criminal justice system was discussed, along
with the two competing models of criminal justice administration. The Aow of cases
through the justice system was illustrated by a "funnel ," reflecting the fact that there is
significant attrition in cases through the criminal justice process. The role of discretion
as exercised by criminal justice system personnel was discussed , as were th e associated
issues of ethics and accountability. Criminal justice personnel work in a va riety of task
environments that affect the challenges they face. Ethics and accountability were discussed as important considerations in criminal justice, and it was noted that there is
variation in the oversight and accountability of criminal justice personnel. There was a
discussion of the various task environments in which the criminal justice system operates and a consideration of the effectiveness of the justice system .
It is important that the public have confidence in the criminal justice system, and
the extent to which the general public views the system as legitimate will impact the
36
Part I: Canadian Criminal Justice: Setting the Framework
NEL
levels of support for justice system policies and practice. It was noted that, for most
Canadians, the media is the primary source of information about the criminal justice
system, and the pervasiveness of social media has resulted in near-instantaneous sharing
of information on justice-related issues. The legislative agenda of the former federal
Conservative government was used as an example of how politics can affect the criminal justice system. Restorative justice has a number of features that distinguishes it
from the adversarial system of justice, and it presents an alternative response to persons
in conflict with the law.
KEY POINTS REVIEW
1. There is no one common ly used statement of purpose of the criminal justice system.
2. The federal and provincial/territorial governments have specific roles in the criminal
justice system.
3. In certain scholarly quarters, there is an ongoing debate as to whether the criminal justice system is a "system."
4. There are competing models used to explain criminal justice admin istration.
5. The Canadian criminal justice system is an adversarial system, which may place certain
persons at a disadvantage.
6. The flow of cases through the criminal justice system can be depicted by a funnel.
7. A key feature of the criminal justice system is the exercise of discretion.
8. Criminal justice personnel carry out their responsibilities in variety of task environments.
9. It is important that criminal justice personnel be held to ethical standards and are
accountable, although some officials in the criminal justice system are subject to more
oversight than others.
10. It is essential that the public have confidence in the criminal justice system.
11. The criminal justice system can be significantly impacted by politics.
12. There is some question as to whether the criminal justice system is effective in meetings
its objectives.
13. Restorative justice presents an alternative framework for responding to persons in conflict with the law.
KEY TERM QUESTIONS
1. Identify the components of the criminal justice system.
2. Why is the Constitution Act, 1867 important in the study of Canadian criminal justice,
and what responsibilities does it assign for criminal justice?
3. Compare and contrast the crime control and clue process models of criminal justice
administration.
4. What is meant by the criminal justice system as an adversarial system?
I
5. Define the concept of beyond a reasonable doubt.
I
6. What is discretion, and what role does it play in the criminal justice system?
I
I
I
7. What is a task environment in criminal justice, and why is this concept important in the
study of criminal justice?
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CHAPTER 2: Understanding the Criminal Justice System
37
8. Define ethics and note its role in the criminal justice system.
9. What is meant by evidence-based practices in the criminal justice system?
10. Define the concept of restorative justice and then compare its principles with those of
the adversarial system of c rimin al justice.
CRITICAL THINKING EXERCISE
Critical Thinking Exercise 2.1
Measuring the Effectiveness of the Criminal Justice System
The discussion in this chapter identified a number of metrics that could be used to determine the effectiveness of the criminal justice system.
Your Thoughts?
1. Can you think of others?
2. What challenges might be encountered in determining the effectiveness of the criminal
justice system?
CLASS/GROUP DISCUSSION EXERCISE
Class/Group Discussion Exercise 2.1
The Goals and Values of the Criminal Justice System
There can be a va ri ety of views on the goals and values that should be reflected in the
criminal justice system. Rate each of the following potential goals and values on a sca le of
1 to 7, with 1 being" ot Important" and 7 being "Important."
The criminal justice system should:
Promote respect for the law
1
2
3
4
5
6
7
3
4
5
6
7
Be timely
1
2
Consider the circumstances of those who are vulnerable and marginalized
1
2
3
4
5
6
7
Place as much focus on addressing underlying social factors
1
2
3
4
5
6
7
Reduce the chances of convicting an innocent person
1
2
3
4
5
6
7
3
4
5
6
7
4
5
6
7
Prevent crime
1
2
Treat everyone fairly
1
38
2
3
Part I: Canadian Criminal Justice: Setting the Framework
NEL
Promote a sense of trust or confidence in the criminal justice system
2
3
4
5
6
7
Provide information accounting for tax dollars spent
2
3
4
5
6
7
Be transparent or clear about rules and guidelines
1
2
3
4
5
6
7
Once you've completed the ranking, discuss your results with classmates. Then compare
your and your classmates' rankings with the results of a survey (N = 4,200) of Canadians,
presented in Figure 2.8.
Your Thoughts?
1. How did your ranking compare to those of your classmates?
2. Was there any consensus on the primary goals and values of the justice system?
3. How did your and your classmates' rankings compare to those of 4,200 Canadians th at
were presented in Figure 2.8?
4. What might be the source of differences between you and your classmates' rankings and
those of the respondents in the Canada-wide survey?
Source: Ekos Research Associates. 2017. National Justice Survey: Canada 's Criminal Justice System. Ottawa: Department of
Justice Canada, p. 29. http://epe.lac-bac.gc.ca/1 00/200/301/pwgsc-tpsgc/por-ef{justice_canada/2017/015-16-e/report.pdf.
"How important is it that the criminal justice system ... ?"
Reduces chances of convicting innocent person
Is transparent or clear about rules and guidelines ~Y-':;(
~ -
•
ij,!.
Promotes trust/ confidence in the system
Is timely
Promotes respect for the law
~~!'>:r~~~
---~ ir;._ ;,,c_,;..;i.:,_,~
Prevents crime
I
FIGURE 2.8 •
I
Important Aspects of
Criminal Justice System
I
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I
I
I
I
Source: Ekos Research Associates. 2017.
National Justice Survey: Ganada's Criminal
Justice System. Ottawa: Department of
Justice, p. 29. http://epe.lac-bac.gc.ca
/100/200/301 /pwgsc-tpsgc/por-ef{justice
_canada/2017/015-16-e/report.pdf.
NEL
Treats everyone fairly, consideration for personal
circumstances
Addressing underlying factors of criminal behaviour
as much as punishing offenders _
Considers circumstances of vulnerable/
marginalized
~~?:'~~ ;~ ~:t-·
<" &";
. ~-- :
~.Jl,-_.c, '!., _1. ,,--_
Provides information accounting for tax dollars spent
0%
20%
40%
60%
80%
100%
• Not important (1-2) • Somewhat important (3-5) • Important (6-7)
*Don't know/No response not shown (0-2%)
A. EKOS Research
'l!et Associates Inc.
N = 4,200
National Justice Survey 2016
CHAPTER 2: Understanding the Criminal Justice System
39
MEDIA LINKS
"Restorative Justice in the Criminal Justice System" (a police officer speaks about restorative justice), http://www.youtube.com/watch?v=R9tl4YmYYnI
"Restorative Justice Is the Law," http://www.heartspeakproductions.ca
"Restorative Practices to Resolve Conflict/Build Relationships: Katy Hutchinson at TEDx/
"vves
' t V:ancouv erED", ]1 ttps·//www
.
-youtube ·com/watch?v=wcLuVeHlrSs
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ey:
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2. Ibid ., p. 25.
3. Ibid .
4. J.B. Snipes and E.R. Maguire. 2007. "Foundations of
Criminal Justice Theory," in Criminal Justice Theory:
Explaining the ature and Behavior of Criminal Justice,
edited by D.E. Duffee and E.R. Maguire, 27-50. ew York:
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5. H. Packer. 1964. "Two Models of tlie Criminal Process,"
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6. R. V. Lifchus (1997) 3 S.C.R. 320 at para. 30, 1997 sec
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7. T.J. Bernard and R.S. Engel. 200 I. "Conceptualizing
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8. J. Hagan . 1989. "Why Is There So Little Criminal Justice
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Delinquency, 26(2), I 16-13 5.
9. Bernard and Engel, "Conceptualizing Criminal Justice
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10. C.T. Griffiths and D. Murdoch. 2018. Canadian Corrections
(5 th ed.). Toronto: elson .
1l. J. 1. Pollock. 20 I 2. Ethical Dilemmas and Decisions in
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12. C. Banks. 2013. Criminal Ju stice Ethics: Theory and Practice
(3rd ed.). Los Angeles: Sage, p. 3.
13. M. Drent. 1998. "The Jane Doe Decision: Implications
for Police Liability," Backgrounder 26. Toronto: The
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http://www.sgmlaw.com/en/about/
JaneDoevMetropolitcanTorontoMunicipalityCommissionersof
Police.cfm.
40
Part I: Canadian Criminal Justice: Setting the Framework
14. Ekas Research Associates,
ational Justice Survey, P· 21.
15 . Ibid ., p. 10.
16. Ibid., p. 16.
17. Canadian Bar Association. 2013. Reaching Equal Justice: An
Invitation to Envision and Act. Ottawa: Author, p. 6. http://
www.lsuc.on.ca/uploadedFiles/For_the_Public/About_the
_Law _Society/Convocation_Decisions/2014/CBA_equa I
_justice.pdf.
18. T. Tyler. 2006. "Psychological Perspectives on Legitimacy
and Legitimation," Annual Review of Psychology, 57,
375-400 at p. 376.
19. Ekos Research Associates,
ational Justice Survey, p. 29.
20. T. Tyler. 2004. "Enhancing Police Legitimacy," The Annals
of the American Academy of Political and Social Science,
593, 84-99 at p. 85.
21. T.R. Tyler and Y.J. Huo. 2002. Trust in the Law: Encouraging
Public Cooperation with the Police and Courts. New York:
Russell-Sage.
22. C.T. Griffiths and P. Clark. 20 17. "Building Police
Legitimacy in a High Demand Environment: The Case of
Yukon, Canada," Policing: An International Journal of Police
Strategies and Management, 40(3), 560-573.
23. C .G. icholl. 1999. Community Policing, Community
Justice, and Restorative Justice: Exploring the Links
for the Delivery of a Balanced Approach to Public
Safety. Washington, DC: U.S. Department of Justice,
Office of Community-Oriented Policing, at pp. 57-58.
h ttp://www.cops.usdoj.gov/Pu bl ications/e09990014
_web .pelf.
24. K. Dowler, T. Fleming, and S.L. Muzzatti. 2006.
"Constructing Crime: Media, Crime, and Popular Culture,"
Canadian Journal of Criminology 6 Criminal Justice, 48(6),
837-850.
25. Ekas Research Associates,
ational Justice Survey, p. 8.
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26. Parole
Boar d of C ana da. 2012.
Performance
Monitoring Report 2011/2012. Ottawa: Author.
h ttp://pbc-clcc.gc.ca/rprts/pmr/pmr_20 l 1_2012/pmr
_2011_2012-eng.pdf.
27. Public Safety Canada. 2013. Public Safety Canada 20102011 Evaluation of the Effective Corrections and Citizen
Engagement Initiatives. Ottawa: Author. http://www
. pu bl i csa fety.gc. ca/c n t/rsrcs/p bl ctn s/vl tn-ffctv
-crrctns-2010-11 /index-eng.aspx.
28.
. Boyd. 2012. The Rule of Law, the Charter of Rights and
Confidence in the Legal System: Lessons from Canada .
Vancouver: International Centre for Criminal Law Reform
and Criminal Justice Policy.
29. A. . Doob and C.M. Webster. 2015, May 4. "The Harper
Revolution in Criminal Justice Policy. . . and What
Comes ext," Policy Options. http://policyoptions.irpp.org/
magazines/is-it-the-best-of-times-or-the-worst/doob-webster.
30. S. Fine. 2016,
ovember 1. "Federal Government
Plans to Reduce the Use of Mandatory Minimum
Prison Sentences," Globe and Mail. https://www
. theglobea ndma i l .com/news/na tional/ottawa-plans-to
-reduce-use-of-mandatory-prison-sentences/article32609570.
l
31. J. Bronskill. 2016, December 13. "Justice Tracking Over
100 Court Challenges to Mandatory Minimum Penalties,"
Canadian Press. http://www.cbc .ca/news/politics/mandatory
-minimums-constitutional-challenges-1 . 3893961.
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32. Cited in Fine, "Federal Government Plans to Reduce the
Use of Mandatory Minimum Prison Sentences."
33. C. Klingele, M.S. Scott, and W.J. Dickey. 2010. "Reimaging
Cnmmal Justice," Wisconsin Law Review, 4, 953-998.
34. M.A. Jackson and C.T. Griffiths. 1995. Canadian Criminology. 1oronto: Harcourt, Brace, Jovanovich.
35. R. Paternoster. 2010. "How Much Do We Really Know
about Criminal Deterrence?" The Joumal of Criminal Law
6 Criminology, 100(3), 765-824 at p. 765.
36. R.B. Cormier. 2002. Restorative Justice: Directions
and Principles-Developments in Canada [User report
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Canada.
http://publications.gc.ca/collections/Collection/
JS42-l 07-2002E.pdf.
37. Prison Fellowship International. 2008. "What Is Restorative
Justice?" Washington, DC: Centre for Justice & Reconciliation.
http://www.pfi.org/cjr/restorative-justice.
38. Y. Dandurand and C.T. Griffiths . 2006. Handbook on
Restorative Justice Programmes. Vienna , Austria: Un ited
Nations Office on Drugs and Crime. http://www.unodc
.org/pdf/criminal_justice/06-56290_Ebook.pdf.
39. G. Johnstone and D.W. Van Ness. 2006. Handbook of
Restorative Justice. Portland, OR: Willan Publishing.
CHAPTER 2: Understanding the Criminal Justice System
41
CHAPTER 3
CONSIDERATIONS IN THE
STUDY OF CRIMINAL JUSTICE
After reading this chapter, you should be able to
• Discuss and define the concepts of racism , discrimination, and inequality in Canada.
• Define and discuss the concepts of racialized persons, racialization , and racial
profiling .
• Discuss the experiences of Indigenous and racialized persons and members of
visible/cultural/religious minority groups in Canada.
• Discuss the concerns over the escalating costs of the criminal justice system .
• Describe the changing boundaries of criminal justice agencies.
• Discuss the issues that surround victims in the criminal justice system.
• Discuss the health and wellness issues of offenders and criminal justice system
personnel.
• Discuss the concerns regarding the lack of diversity among criminal justice
system personnel.
PERSPECTIVE
Canadians' Experiences
I was at my_ workplace _and we have swipe cards to get into rooms. I went into my office
and 1mmed1ately security knocked at the door. They said they wanted to check who had
gone in. I am pretty sure they got alarmed because all they could see was someone
wearing hijab walking into an office. (South Asian Muslim female, age 25-34)8
\
We call it the Brown Guy room at the airport for a reason. I even have my "regular seat".
(South Asian Hindu male, age 45-54)b
Racial profiling cannot be tolerated. It is offensive to fundamental concepts of equality
and the human dignity of those who are subject to negative stereotyping. It fuels negative and destructive racial stereotyping of those who are subject to profiling. (Ontario
Court of Appeal, Peart v. Peel Regional Police Services, 2006)C
• Ontario Human Rights Commission. 2017. Under Suspicion. Research and Consultation Report on Racial Profiling
in Ontario. Toronto: Author, p. 6. http://ohrc.on.ca/sites/default/files/Under%20suspicion_research%20and%20
consultation%20report%20on%20racial%20profiling%20in%200ntario_2017.pdf. © Queen's Printer for Ontario, 2017.
Reproduced with permission.
b Ibid., p. 5. © Queen 's Printer for Ontario, 2017. Reproduced with permission.
'Ibid., p. 9. © Queen's Printer for Ontario, 2017. Reproduced with permission.
One theme in this text is how racism, discrimination, and inequality are manifested
in the criminal justice system and the impact of these on the experiences of the community, offenders, victims, and criminal justice system personnel. The discussion in
this chapter highlights the importance of considering the historical and contemporary
experience of certain groups in Canadian society that may affect their views of and
experiences in the criminal justice system. These materials can also inform policies and
programs designed to address the specific needs of persons in these groups.
The materials presented in the text will reveal that the criminal justice system is populated
by a disproportionate number oflncligenous persons, racializecl persons, and those who are
vulnerable and marginalized in Canadian society. TI1is includes persons with addictions,
mental illness, and intellectual disabilities (i.e., limitations in intellectual functioning), and
persons in living in poverty. These persons are at high risk of victimization and of being
in conflict with the law, and they present challenges for the criminal justice system. 1
MULTICULTURALISM AND DIVERSITY IN CANADA
Canada prides itself on being a diverse, multicultural society. A poll conducted in 2016
( = 2,001) found that 43 percent of respondents identified multiculturalism and
diversity as the attribute that made Canada unique.2 Canada's visible minority population has grown steadily between 1981 and 2006, in large part clue to increasing immigration from countries other than Europe. 3 The visible minority population has grown
faster than the total population. 4
However, observers have cautioned that, while there are strengths associated with
multiculturalism , including the promotion of greater tolerance, there are weaknesses,
including the creation of fault lines between groups and the view that multiculturalism
is incompatible with liberal Western values. 5
INEQUALITY
A key feature of Canadian society is inequality. Research, for example, has found that there
has been increasing income inequality. 6 This increase was most pronounced for those
NEL
CHAPTER 3: Considerations in the Study of Criminal Justice
43
persons in the top 1 percent of the population, who earn 39.1 percent of income in the
8
country.7 In contrast, more than 1 million children are living in low-income households.
Low income and poverty are associated with poor health, a lack of access to services, and a
higher risk of becoming involved in the criminal justice system. Poverty, for example, has
9
been found to be related to child anxiety/depression and anti-social behaviour.
Inequality is also reflected in the gap in workplace wages between men and women. It
10
is estimated that gender inequality in the workplace costs Canada $150 billion a ye~r.
Data indicate that women working full-time earn 74.2 cents for every dollar that full-t:Jme
male workers make. 11 This disparity is due, in part, to gender differences in industry and
occupation.12 Surveys have found that, while a majority of Canadians feel tha_t gend~r
equality has progressed, the wage gap is viewed as a major obstacle to profess10~als 111
this area .13 Although the wage gap has decreased in recent years, there are still discrep14
ancies that have a significant impact on women, their families, and the economy.
RACISM, PREJUDICE, AND DISCRIMINATION
Racism, prejudice, and discrimination have been long-standing features of Canadian
society and these may be manifested at times in the criminal justice system. Racism is
preiudice, discrimination, or antagonism directed against someone of a different race
based on the belief that one's race is superior. 15
Prejudice is the unsubstantiated, negative pre-iudgment of individuals or groups, generally on the basis of ethnicity, religion, or race.16 Discrimination is an action or a decision
that treats a person or a group negatively for reasons such as their race, age, or disability. 17
These dynamics may exist at any one point in the criminal justice system, including
in the decision-making of police officers, in the courts at sentencing, and in institutional and community-based corrections. The presence of prejudice, discrimination,
and racism is not always overt, but may be subconscious on the part of justice system
personnel or may be subtle and not readily identifiable. Also, persons in conflict witl1
the law may perceive that they are the victims of prejudice, discrimination , and racism
even in instances where there is no substantial proof that it has occurred. evertheless,
it is important to understand the basis of these perceptions.
The United ations has raised questions about Canada's record on anti-racism, citing
the continuing challenges facing Indigenous peoples. 18,19 111ere is evidence tl1at racism
and discrimination exist in Canada, particularly with respect to women, Indigenous
persons, persons in racialized groups, and otl1ers. This is reflected in tl1e increase in
police-reported hate crimes related to religion or race and ethnicity. 20 Hate crimes against
the Muslim population, for example, increased 61 percent in 2015. Hate crimes involving
violence related to sexual orientation increased 59 percent in 2015. In 2017, controversy
over Canada's immigration policy spilled over into street-level conflicts between anti-racist
and anti-fascist groups and far-right groups who oppose Canada's admission of refugees.
Canadian scholars and policy-makers have generally given little attention to the relationships between race, crime, and criminal justice.21 It has been over two decades
since a commission of inquiry on systemic racism in the Ontario criminal justice system
found that there were decisions in the criminal justice system that reflected a bias
against racialized persons. 22 Recall from Chapter 1 the conflict model of the origins
and application of the criminal law wherein the law is formulated and applied by the
powerful and used against those who are vulnerable.
The Canadian public appears to be aware of iliis issue. A survey ( = 1,000) of
Canadians found that 69 percent of respondents felt tl1at there was racism in Canada,
and nearly half had heard persons make racist remarks .23 An online survey ( = 1,000)
44
Part I: Canadian Criminal Justice: Setting the Framework
Racism
Prejudice, discrimination, or antagonism
directed against someone of a different
race based on the belief that one's race
is superior.
Prejudice
The unsubstantiated, negative prejudgment of individuals or groups,
generally on the basis of ethnicity,
religion, or race.
Discrimination
An action or a decision that treats a
person or a group negatively for reasons
such as their race, age, or disability.
NEL
AT ISSUE 3.1
IS IT POSSIBLE TO ENO RACISM IN THE CRIMINAL JUSTICE SYSTEM?
The issue of racism in the criminal justice system was first highlighted in 1995 in the Report of
the Commission on Systemic Racism in the Ontario Criminal Justice System. Over two decades
later, the issues of racism, prejudice, and discrimination in the justice system are even more
pronounced. A recent high-profile effort by the Ontario provincial government is centred on public
education and awareness and anti-racism strategies. Given the inability to successfully address
these issues to date, it could be argued that these strategies will have little effect.
QUESTIONS
1. In your view, why have racism, prejudice, and discrimination continued to exist in Canadian
society? In the criminal justice system?
2. From your lived experience, what do you think would be the most effective ways to address
these issues?
3. How optimistic are you that these issues can be successfully addressed? What is the basis for
your optimism/pessimism?
in Vancouver found that 82 percent of visible minorities indicated they had been subjected to prejudice or other forms of discrimination. 24
To address these issues, in 2017, the province of Ontario announced a three-yea r
strategic plan. 25 This comprehensive plan has a number of components, including legislation , targeted public education and awareness, an anti-Black racism strategy, and an
Indigenous-focused anti-racism strategy, among others. See At Issue 3.1.
RACIALIZED PERSONS, RACIALIZATION, AND RACIAL PROFILING
Racialized persons
Persons, other than Indigenous people,
who are non-Caucasian in race or nonwhite in colour.
Racialization
The process by which societies
construct races as real, different, and
unequal in ways that matter to economic, political and social life
Racial profiling
Any action undertaken for reasons of
safety, security or public protection
that relies on stereotypes about race,
colour, ethnicity, ancestry, religion, or
place of origin rather than on reasonable
suspicion, to single out an individual for
greater scrutiny or different treatment.
NEL
Three key concepts in the discussion of racism, prejudice, and discrimination are
racialized persons, racialization, and racial profiling. Canada's National Council of
Welfare defines racialized persons as persons, other than Indigenous people, who are
non-Caucasian in race or non-white in colour. 26 Racialization is the process by which
societies construct races as real, different, and unequal in ways that matter to economic,
political , and social life. 27 Racial profiling has been defined as "any action undertaken
for reasons of safety, security or public protection that relies on stereotypes about race,
colour, ethnicity, ancestry, religion, or place of origin rather than on reasonable suspicion, to single out an individual for greater scrutiny or different treatment." 28
A report on racial profiling by the Ontario Human Rights Commission in 2017
cautioned that there is often no independent verification in cases where a person's or
group's perception is that they have been racially profiled .29
Profiling can also occur in the larger community. A survey of a sample of Ontarians
(N = 1,503) found that being raciall y profiled by a private business or retail
service (46.6 percent) was mentioned more frequentl y than being profiled by the police
(37.9 percent).30
A survey of a non-random sample of persons in Ontario (N = 1,503) found tl1at four
in 10 reported having been racially profiled. 31 See Figure 3.1.
The same survey found that the majority of Blacks (93 percent) in the sample felt
they were profiled due to their "race or colour," while the majority of Muslim respondents (79 percent) identified their religion as the reason they were profiled .32
Racial profiling has a profound effect on the individual who is profiled, including
loss of self-esteem, dignity, and sense of safety and security, both on families and on the
social fabric of communities. See Figure 3.2.
CHAPTER 3: Considerations in the Study of Criminal Justice
45
80 70 >- 60 g 50 ~ 40 ~ 30 20 10 0
• FIGURE 3.1
72.5%
Reported Incidence of Racial
Profiling among Survey
Respondents by Racial or Ethnic
Background (N = 1,503)
.,.
Black
(N= 203)
Indigenous
(N=66)
Other racialized
(N= 100)
Asian
(N=34)
Racial or Ethnic Background
73.8%
80 70 60 >,
g 50 ~
.,. 40 ~ 30 20 10 -
Source: Ontario Human Rights Commission. 2017.
Under Suspicion. Research and Consultation
Report on Racial Profiling in Ontario. Toronto: Author,
p. 20. http://ohrc.on.ca/sites/defaulVfiles/Under
%20suspicion_research%20and%20consultation
%20report%20on%20racial%20profiling%20in
%200ntario_2017.pdf. © Queen's Printer for
Ontario, 2017. Reproduced with permission.
• FIGURE 3.2
Reported Effects of Racial Profiling
by Number of Reported Incidents
in the Last 12 Months
0
No effect
Negative
Negative
mental health physical health
effects
effects
Decreased
trust in
police
Decreased
trust in
law/justice
system
Decreased
sense of
belonging/
trust in
society
Effect
• 1 incident (N= 135) • 3 or more incidents (N= 221)
Source: Ontario Human Rights Commission. 2017.
Under Suspicion. Research and Consultation
Report on Racial Profiling in Ontario. Toronto:
Author, p. 26. http://ohrc.on.ca/sites/default
/files/Under%20suspicion_research%20and%20
consultation%20report%20on%20racial
%20profiling%20in%200ntario_2017.pdf.
© Queen's Printer for Ontario, 2017. Reproduced
with permission.
Although most frequentl y discussed in the context of policing (see Chapter 4), racial
profiling can occur at any stage of the crim inal justice system and in society in general.
Black accused persons, for example, may be more likely to be denied bail clue to an
assumed higher level of risk (Chapter 7) and are disproportionately placed in segregation in correctional institutions (Chapter 11 ).
Perceptions are important in the discussion of racial profiling; although there may
not be intent on the part of criminal justice personnel to profile, if members of a racializecl group perceive they are being profiled, tl1e impact may be tl1e same as if the intent
were present.
Persons who are racializecl often face challenges in accessing justice. 33 Crimina l
legal aid programs, funded by tl1c federal government and the provincial and territorial governments, are designed to facilitate access to justice for poor and marginalized
persons. 34 Racial profiling not only results in the alienation of communities and individuals, but also has been found to be ineffective as a strategy for ensuring community
safety and security. 35 ,36
Caution should be exercised in assuming that all members of these groups share
th e same experiences and perspectives. For example, one participant in a group session conducted as part of the Black Experience Project stated, 'Tm born in Montreal
and I' m of Haitian descent, I have ... nothing in common with yo u all like nothing,
except that I'm Black and I'm here .... " 37 Similarly, a survey of Musl ims found considerable diversity of opinion on a wide range of topics, including whether Muslim
women should be all owed to wear a niqab when participating in a citizenship
ceremony. 38
46
Part I: Canadian Criminal Justice: Setting the Framework
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THE EXPERIENCES OF WOMEN
The exclusion of women from all public offices is a relic of days more barbarous
than ours. And to those who would ask why the word "person" should include
females, the obvious answer is, why should it not?39
This statement was made by Lord Sankey, Lord Chancellor of Great Britain, as part of
the unanimous decision of England's Privy Council (which at that time ran Canada 's
legal affairs) in October 1929. It established that Canadian women were to have the
legal status of "persons." Women had been given the right to vote in the four Western
provinces in 1916, in Ontario in 191 7, in ova Scotia in 1918, in ew Brunswick in
1919, in PEI in 1922, but not until 1940 in Quebec. (Indigenous persons were not
granted the right to vote until 1960.) However, prior to this decision in 1929, they were
not allowed to participate in politics. 40
There have been significant improvements in the education levels of women in
Canada. 41 Women are more likely than men to have a high school diploma, and
women account for the majority of enrolments in college and university programs.42
The level of income and socio-economic status of women is strongly linked to their
ievel oflife satisfaction, health , and mental health. 43 ,44 For example, women who report
that they have very good or excellent health are those with higher levels of income and
education. 45 Conversely, those women with the lowest incomes report considerably
lower levels of good health and more health problems. 46
The experience of women as victims of crime and in the justice system is illustrated
in crime statistics. The rates of self-report violent victimization are higher among
women (8 5 per 100,000 versus 67 per 100,000 for men). 47
The most common crime committed against women is assault, 48 and women represent nearly 90 percent of all sexual assault victims. 49 The rate of violent victimization
is highest among women aged 15 to 24, and the risk of being the victim of violence is
higher among those women with mental health issues. 50
Bias may occur in how the criminal justice system responds to women who have
been victimized. In the discussion of police operations in Chapter 6, it is noted that
there are high rates of dismissals of allegations of sexual assault made by women, while
at the sentencing stage of the criminal justice process, discussed in Chapter 9, there are
criminal court judges who blame the victim in their court rulings.
THE EXPERIENCES OF INDIGENOUS PERSONS
In this text, the term Indigenous will be used to denote status and non-status Indians,
Metis, and Inuit, although another commonly used term is Aboriginal. Indigenous persons are disproportionately represented as both victims and offenders at all stages of the
criminal justice system. 51
The rate at which Indigenous persons report experiencing violent victimization is
more than double that of non-Indigenous persons (160 incidents per 1,000 population compared with 74 incidents per 1,000 population). 52 While Indigenous people
represented about 4 percent of the total Canadian population in 2006 (the most
recent population count available), 27 percent of homicide victims in 2009 were
Indigenous. 53
The issues surrounding the overrepresentation of Indigenous persons in Canada's
criminal justice system are discussed throughout the text. At this juncture, it is important
to comment, albeit briefly, on the events that ma y contribute to this overrepresentation.
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CHAPTER 3: Considerations in the Study of Criminal Justice
47
INDIGENOUS PERSONS IN CANADIAN SOCIETY:
THE LEGACY OF COLONIZATION
Many Indigenous people live on the margins of Canadian society. This is reflected in
pervasive poverty, high rates of unemployment, low levels of formal education, and
high death rates from accidents and violence. On nearly every measure of health and
54
well-being, Indigenous persons are much worse off than non-Indigenous persons.
More than half of Indigenous students fail to graduate from high school, and the
unemployment rate among Indigenous persons is twice that of non-Indigenous persons. Indigenous youth ma y be prime targets for gang recruitment, which may result
in involvement in the criminal justice and corrections systems.
55
In the province of
Manitoba, for example, Indigenous youth make up 23 percent of the general popula56
tion but 84 percent of the youth in sentenced custody.
The subordinate political and economic condition of Indigenous peoples is a consequence of their colonization by Europeans and of Canadian government policies that
have exerted control over virtually every aspect of Indigenous life. These policies have
had a devastating impact on the social, political , and economic fabric of Indigenous
communities. 57 As one Indigenous yo uth stated:
The history that's so commonly accepted is just one side of the story. o one wants
to acknowledge all the historical trauma that we face today by losing the land, and
the reserves systems, and colonization-how that even affects us today. It needs to
be acknowledged if we want to heal. To understand how deep this trauma goes and
how it's still happening. 58
A significant contributor to these conditions was the residential school system that
was operated by the federal government from the late 1880s until the 1990s. In the
residential school system, Indigenous children were forcibly removed from their families, often for many yea rs. During this time, 150,000 Indigenous children were sent to
residential schools. At its peak in 1930, 80 residential schools were in operation across
the country (except in ewfoundland, New Brunswick, and Prince Edward lsland). 59
The intergenerational impact of residential schools was identified by the Truth and
Reconciliation Commission (TRC) as a major factor in Indigenous persons' conflict
with the law.
In the residential schools, many operated by religious orders including the Catholic
and Anglican churches, Indigenous children were subjected to physical, sexual, and
psychological abuse. Children were punished for practising their own cultures and for
using their own language, resulting in feelings of shame about one's identity and a loss
of cultural practices and language acquisition across generations. 60
The residential school system fractured Indigenous families, helped destroy traditional cultures and values, and shredded the fabric of many Indigenous communities. 61
A poll of Canadians in 2015 ( = 1,5 11 ) found that 70 percent of those surveyed
agreed with the finding of the Truth and Reconciliation Commission that the residential school system was "cultural genocide." 62
While most Canadians are aware of the residential schools and their impact, so did
the '"60s Scoop," profiled in Criminal Justice File 3.1, also had a devastating impact on
Indigenous children, their families, and communities.
Less well known, but equally as impactful for some Indigenous persons, their families, and communities, was the system of tuberculosis (TB) sanitariums that operated
across the country from the late 1800s until the mid-l 900s. TB, a bacterial infection
that primarily affects the lungs, was the leading cause of death in Canada in 1867, and
hospitals were designed to isolate those persons with the disease, often for periods of
48
Part I: Canadian Criminal Justice: Setting the Framework
NEL
• Cree students attending the Anglican-run
Lac la Ronge Mission School in La Ronge,
Saskatchewan, 1949
.l
up to two yea rs. This was prior to the developm ent of drug therapy that is used today
for th e disease.
Indigenous persons, including Inuit, we re sent thousands of kil ometres from
their home co mmuniti es in th e No rth to sa nitariums in th e south-Inuit from th e
western Arctic to a hospital in Edmonton and those from th e eastern Arctic to a hospital in Hamilton , Ontario.63 This frac tured famili es and often resulted in the loss
of language .
CRIMINAL JUSTICE FILE 3.1
THE "'6OS SCOOP"
Indigenous families and communities were further fractured during the years between the 1960s
and 1980s. In what became known as the "'60s Scoop," as many as 16,000 Indigenous children
were removed from their families by child welfare workers and placed in non-Indigenous families
across Canada, the U.S., and the U.K. This was done without the consent of their parents.
The impact of this on the culture and identity of Indigenous children was significant and has
often been referred to as "cultural genocide" and as contributing to the high numbers of Indigenous youth in care. In the words of one survivor:
I lost everything, including my name. I lost my family. I lost my language. I lost everything about my culture . This should have never happened. It was wrong.a
In 2017, an Ontario court judge ruled that the federal government had breached its duty of
care to the thousands of Indigenous children who were removed from their families. In the view
of the court, the loss of identify contributed to addiction, mental health issues, and fractured lives
experienced by many of the children in their adult lives.b That same year, the federal government
reached an $800 million settlement with those who had been removed from their birth families.
• A. Russell. 2016, August 23. "What Was the "60s Scoop'? Aboriginal Children Taken from Homes a Dark Chapter in
Canada's History," Global News. http://globalnews.ca/news/2898190/what-was-the-60s-scoop-aboriginal-children
-taken-from-homes-a-dark-chapter-in-canadas-history.
b J. Gallant. 2017, February 14. "Judge Rules in Favour of '60s Scoop Victims" Toronto Star. https://www.thestar.com
/news/gta/2017/02/14/judge-rules-in-favour-of-sixties-scoop-victims.html.
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CHAPTER 3: Considerations in the Study of Criminal Justice
49
As one Indigenous man who was sent to a TB sanitorium as a child recalled :
When I was there, I had a good grasp of the English language and I spoke English
fluentl y. When I came back into my community, I spoke not one word of my own
language and I couldn't remember how to speak it. I haven't spoken it for many yea rs
and it's only now just coming back to me.64
THE EXPERIENCES OF INDIGENOUS WOMEN
Indigenous women face a number of unique challenges that may place them at risk.
A contributor is the stereotypes held of Indigenous women by Canadian society. (For
example, view the film, "Shit Canadians Say to Aboriginal Women ," listed in the Media
Links section at the end of this chapter.) Also, although the gap in life expectancy
65
between Indigenous and non-Indigenous women has been narrowing, it persists.
The living arrangements of Indigenous women also play a role in the challenges
they face. Household crowding, for example, is associated with health and social issues,
including mental health problem and family violence. In 2006, 31 percent of Inuit
women and girls were living in crowded homes, compared to 3 percent of non-Indigenous
women, and 14 percent of First Nations women and girls were living in crowded dwell66
ings, over three times higher than the proportion of non-Indigenous women (3 percent).
Indigenous women are generally less likely than their non-Indigenous counterparts to
be part of the paid workforce, and the rates of unemployment among Indigenous women
67
are !:\vice as high than for non-Indigenous women (13.5 percent versus 6.4 percent).
Indigenous women are much more likely to live in households with incomes under the
poverty line. 68
These factors, and histories of trauma in their personal lives, contribute to placing
Indigenous women at high risk of victimization, as reflected in the following:
• Indigenous women are more likely to be affected by all types of violent victimization. 69
• The homicide rate for Indigenous women is nearly six times higher than that for nonIndigenous women-4.82 per 100,000 population versus 0.82 per 100,000 population. 70
• Indigenous women experience higher rates of spousal violence; they are three times
more likely than non-Indigenous women to report being the victim of spousal violence
(10 percent versus 3 percent, respectively).71 ,72
• Young Indigenous women may be particularly at risk of sexual assault, particularly if they
had parents who attended residential schools and had experienced childhood sexual
abuse. 73
For an account of the historical and contemporary context of violence against
Indigenous women, see the work by Anne McGillivray and Brenda Comaskey
entitled Black Eyes All of the Time. 74 These issues are reflected in the tragedy of missing
and murdered Indigenous women and girls, which is discussed later in the text.
SEXUAL MINORITIES
Persons with various sexual orientations may encounter prejudice and discrimination
and may be at risk of victimization. Research on the victimization of minority groups
shows that individuals who self-identify as homosexual or bisexual are much more
likely than individuals who self-identify as heterosexual to experience victimization. 75
Gay and bisexual women, for example, are more likely to be victimized than heterosexual women. 76
50
Part I: Canadian Criminal Justice: Setting the Framework
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LGBTQYOUTH
An example of the challenges faced by sexual minorities is illustrated by the experiences of LGBTQ youth. A study of homeless youth in Toronto ( = 100 youth who
were poly-substance abusers, then five focus groups with 27 youth ) found greater
use of methamphetamines and opioids among homeless LGBTQ youth than their
~eterose_xu~l ~ee~s .77 These circumstances and behaviours place LGBTQ at a high
r'.sk of v1chm1zahon, contact with the police, and involvement in the criminal justice system.
Transgender youth have reported barriers to accessing supportive and knowledgeable health care. 78 These youth are most likely to encounter discrimination than
their peers in the shelter system. 79 In a survey (N = 762, 54 percent of whom were
Indigenous youth ) of street-involved and marginalized youth in British Columbia,
participants reported a lack of both culturally relevant services and LGBTQ-related
services, in addition to being discriminated against based on their race and/or skin
colour. 80 One observer noted, "The threat of violence and harassment on the streets
is exacerbated for LGBTQ youth due to frequent encounters with homophobia and
transphobia." 81
Attention is also being given to the experience of Indigenous Two-Spirit/LGBTQ
persons. 82 An exploratory study of this group ( = 50) in Winnipeg and Vancouver
found that they faced challenges in being accepted for their identities-for example,
as male, gay, Indigenous youth both in their home Indigenous communities and in the
urban centres to which they had migrated. 83 These struggles had a significant impact
on their health and well-being, and often led them to become involved in substance
abuse and to be at increased risk of physical and sexual assault. 84
THE EXPERIENCES OF MUSLIMS
Groups may also be discriminated against and be victimized by violence due to their
religious beliefs. This has been experienced by Muslims in Canada.
A poll of Canadians in 2017 ( = 2,513; 1,024 in Quebec and 1,489 elsewhere in
Canada) focusing on attitudes toward minority and immigrant groups found that only
12 percent of the respondents felt that Muslims were integrated in Canadian society,
and that one in three Quebecers and one in four of other Canadians were in favour of
banning Muslim immigration to Canada. 85
A survey of Muslims ( = 600) found that one-third (35 percent) of those surveyed
indicated they had experienced discrimination or unfair treatment by others in Canada
in the past five years because of their religion (22 percent), ethnic or cultural background (22 percent), language ( 13 percent), or sex (6 percent). ( ote: Individual percentages exceed total because some individuals have experienced discrimination for
more than one of these reasons.) The combined total for discrimination due to religion
and/or ethnicity/culture was 30 percent. 86
Concerns have been expressed about the rise of lslamophobia ("fear of Muslims")
across Canada, but particularly in Quebec. 87 Anti-Muslim graffiti has appeared across
the country, including on schools in Calgary and on the cars of Muslim families. In
2017, Parliament passed Motion 103, which stated that the House of Commons called
on the federal government to condemn lslamophobia and "all forms of systemic racism
and religious discrimination." Note that motions are not legislation, but recommend a
certain course of action by government.
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CHAPTER 3: Considerations in the Study of Criminal Justice
51
MUSLIM EXPERIENCES IN QUEBEC
Although Muslims often face challenges in all regions of the country, these have
been particularly acute in the province of Quebec. Recall from Chapter 1 that
provincial legislation (Bill 62) was passed in October 2017 requiring women to
uncover their faces when providing, or receiving, government services. Although
this legislation will likely be challenged in court and perhaps found to be unconstitutional, its passage suggests there are divisions between the Muslim community and the larger Canadian society.
This legislation was passed against the backdrop of a number of critical incidents that significantly affected the Muslim community. More recently, on
January 29, 2017, a mass shooting occurred at the Islamic Cultural Centre of
Quebec City. Six persons were killed and 19 more wounded by a lone gunman
at tl1is mosque in the suburb of Sainte-Foy. On August 6, 2017, the vehicle of
the president of the Islamic Cultural Centre of Quebec City was torched at his
home in an arson attack.
Other incidents in the province included a pig's head being left at the front door
of a mosque (Muslims do not eat pork) in 2016 and a referendum in June 2017
in which the residents of tl1e community of Saint-Apollinaire (population 6,400)
voted to deny a zoning change tlrnt would have allowed tl1e Islamic Cultural
Centre to open a Muslim cemetery. The far-right group La Meute ("Wolf Pack") was
identified as having mobilized community opposition to the cemetery. 88,89 The municipal government in Quebec City subsequently sold land to the Centre culture! Islamique
._ Graffiti on a Quebec City mosque in 2014
de Quebec to be used for a Muslim cemetery. 90
THE EXPERIENCES OF BLACKS
Blacks in Canada have experienced racism, prejudice, and discrimination historically and in contemporary times. For purposes of this text, the term "Black" includes
persons who self-identify as "Black," "African," "African-Canadian ," "Caribbean ,"
"Afro-Canadian," and others. Observers have argued tl1at, historically, Blacks in Canada
have been subjected to "structural violence" perpetrated by state-funded institutions,
including the criminal justice system and, most notably the police. 91
Support for this view is provided by the historical record, which indicates that, far
from being a promised land for escaping slavery in the U.S., in Canada, Blacks were
subjected to segregated and inferior schools, excluded from employment opportunities,
and subjected to racial stereotyping and discrimination. 92 They were also held as slaves
in some parts of the country. An advertisement placed by one Peter Russell of York on
February 10, 1806, read:
To be sold. A Black Woman named Peggy, aged 40 yea rs, and a boy, her son, named
Jupiter, aged about 15 yea rs, both of them the property of the Subscriber. 93
In ova Scotia, the Council of Parties of the ova Scotia Home for Colored Children
Restorative Inquiry (RI ) (https://restorativeinquiry.ca) has reported on systemic racism in
the province and its impact on Black families and communities. The inquiry, ongoing
as of the encl of 2017, has proceeded within a restorative framework that will develop
strategies to address the issues that are identified. Among the findings of the RI has been
tl1e need for strong role models for African ova Scotian youth.94
Black children and youth are disproportionately represented in child welfare, child
protection, and youth justice systems; in the numbers living in poverty; and among
52
Part I: Canadian Criminal Justice: Setting the Framework
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those at high risk of sexual exploitation and violence. In Toronto, Black children comprise 41 percent of the yo uth in care of the Children's Aid Society, a number that is five
times their representation in the general populatio 11 _95
Black children drop out of school at a higher rate than other children, and the rates
of unemployment of Black youth in Ontario is nearly two times the provincial rate.96
There are concerns that the experiences of Black women, which include racism, have
not received sufficient attention in the feminist movement. 97 As one observer noted "In
Canada, black women and other women of colour find themselves missing not ~nly
from movements for gender diversity, but also from seats of power. Bank boards, newsrooms, hospital boards and executive positions are all spaces where white women see
themselves better represented."98
The history of oppression of Blacks is the basis for the arguments being made by
defence counsel for Blacks accused of crimes-that is, that the history of Black oppression and racism should be considered at sentencing, much as those oflndigenous persons
are. This issue is discussed in Chapter 9. Similar to their counterparts in the U.S., Black
adults are overrepresented in correctional institutions in Canada. 99 This is discussed in
Chapter 11 .
1
THE BLACK EXPERIENCE PROJECT
The Black Experience Project in the Greater Toronto Area is an example of one initiative that is facilitating dialogue on the issues that are important to the Black community.
In recognition of the importance of "giving voice" to groups in a diverse society and
to understand their "lived experience," the Environics Institute, in partnership with
Ryerson University's Diversity Institute, the United Way of Greater Toronto, the YMCA
of Greater Toronto, and other organizations, have created The Black Experience
Project (www.theblackexperienceproject.ca).
The initiative, which involves extensive community consultation and dialogue,
focuses on the challenges and opportunities in the Black community in the Greater
Toronto Area. Among the issues being addressed are education, physical and
mental health , employment, and community safety. The community safety issues
that have been identified are perceptions of bias toward Blacks by police and the
stigmatization and criminalization of young Black men. The dialogue has noted the
importance of relationships of trust between the police and the Black community,
as well as the need for police outreach and community engagement. View "The
Black Experience Project" video listed in the Media Links section at the encl of
this chapter.
ADDITIONAL CONSIDERATIONS
There are a number of additional issues that surround the criminal justice system in
the early 21st century and that provide the backdrop for the discussions in the following chapters.
THE ESCALATING COSTS OF THE CRIMINAL JUSTICE SYSTEM
The criminal justice system is a very expensive enterprise. Over the past decade, criminal justice expenditures have increased both in real terms and as a percentage of
GDP (gross domestic product), despite the overall decline in crime rates across the
country. IOO See Figure 3.3; also, a breakdown of expenditures is presented in Figure 3.4.
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CHAPTER 3: Considerations in the Study of Criminal Justice
53
• FIGURE 3.3
1.15% a.
-
Total-% GDP (left}
-
Crime/100,000 (right}
C
0
9000
:;::,
"'
'S
Q.
1.11 % -
0
8000 a.
1.07% -
7000
.,
e., 1.03% -
6000
C
t:,
0.,
0)
.l!l
C
§
a.
8
...
tQ.
.,
.§
5000 c3
0.99% 0.95%
Canadian Crime Rate and Criminal
Justice Expenditures as a
Percentage of GDP
Source: R. Story and T.K. Yalkin . 2013. Expenditure
Analysis of Criminal Justice in Ganada. Ottawa:
Office of the Parliamentary Budget Officer, p. 2.
http://www.pbo-dpb.gc.ca/web/default/files/liles/
files/Crime_Cost_EN.pdf. Reprinted with permission
of the Office of the Parliamentary Budget Officer.
4000
2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012
• FIGURE 3.4
Proportional
Cost of Corrections
Criminal Justice Expenditure
Proportion, 2012
Proportional
Cost of Security
Proportional
Cost of Courts
Source: R. Story and T.K. Yalkin. 2013. Expenditure
Analysis of Criminal Justice in Ganada. Ottawa: Office
of the Parliamentary Budget Officer, p. 18. http://
www.pbo-dpb.gc.ca/web/default/files/liles/liles
/Crime_Cost_EN.pdf. Reproduced with the permission
of the Parliamentary Budget Officer.
The high cost of crime and the criminal justice response is also illustrated by the
figures in Figure 3.5, which set out the costs for selected offences. The "cost" for each
type of crime includes victim costs, such as direct economic losses to property and wages,
and medical costs due to injury; expenditures for police, courts, and corrections; "opporhmity costs" resulting from the decision of a person to engage in crime rather than a
legitimate activity; and intangible costs, such as pain and suffering of victims. IOl ,IOZ
A key question is whether the Canadian public is getting "value for money"; that is,
do the expenditures on the police, the courts, and corrections and related programs and
services make communities safe from crime, address the needs of crime victims, and intervene in such a way so as to reduce the likelihood that offenders will continue their criminal
behaviour? Unfortunately, the answer to these questions is often, "We're not certain."
THE CHANGING BOUNDARIES OF CRIMINAL
JUSTICE AGENCIES
Historically, there have been very clear boundaries between the various components of
the criminal justice system. The police focused on the apprehension of offenders, the
courts on prosecuting and sentencing, and corrections on implementing the sentences
of the courts. This often resulted in agencies operating in "silos," focused only on their
specific mandate and not considering the larger context of a problem of crime and disorder, specific patterns of criminal behaviour, or the needs of offenders, which are often
multifaceted (such as those with addictions or mental illness).
The siloed approach is slowly changing, and criminal justice agencies are parb1ering
with social services, health, and other agencies and community resources to address the
54
Part I: Canadian Criminal Justice: Setting the Framework
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FIGURE 3.5 •
Homicide-
Costs of Crime and the Criminal
Justice System for Selected
Offences, 2014
Source: T. Gabor. 2015. Costs of Crime and
Criminal Justice Responses [Research report
2015-R022]. Ottawa: Public Safety Canada, p. 6.
https://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/
2015-r022/2015-r022-en.pdf. This information
was reproduced with the permission of the
Minister of Public Safety and Emergency
Preparedness Canada, 2017.
-
Sexual assault/rape
Assault
-
g
Aggravated assault
-Robbery
IMotor vehicle theft
~
IArson
Residential burglary
jTheft
-Fraud
Os,\)
\)\)\)
~\)•
~
\)\)\)
\)\)•
~
\)\)\)
~\)•
0s,"-
\)\)\)
Rl\) '
Os,~
\)\)\)
b\) '
Os,"(,;
\)\)\)
le)\) '
q-·1:3
~\)
1:3
~\) •
1:3
Os,~'
\)\)\)
~\) •
1:3
0s,'o•
Estimated Cost per Incident in 2014
needs of persons in conflict with the law. Multi-agency teams, such as the police working
with social workers and mental health professionals, are common. These teams may focus
on a specific neighbourhood or on groups of offenders. This is a more holistic approach to
problem-solving and has the potential to effectively address the underlying issues that contribute to crime and disorder, rather than merely respond to the symptoms of these issues.
Although agencies can benefit from moving outside of their traditional sphere of
activities, there are concerns that collaboration may blur the mandates of individual
components of the justice system; for example, when parole officers work in teams with
police officers, it may create an inordinate focus on surveillance and control to the
detriment of the helping and assistance role of parole officers. 103
THE RISE OF THE SURVEILLANCE SOCIETY
Oh, ioY1'r wort~
M,, ~11,aso11 . iris
""'!I s-111coll l'l iCt"o-41,f
hr1p/Q~t bd1incl +he.
4
eQt":
No GIit. wi+h Q
cl~ COl!Scit.ncc. 11u.l
\\QVt. a,,_y CC/lar'rt .
NEL
A key feature oflife in the early 21st century is the pervasiveness of technology and, more
specifically, surveillance technology. Most citizens do not realize that, every day, their
activities are recorded by video cameras-while shopping, when standing at a bus stop,
even while driving. Ostensibly, the application of surveillance technology is to ensure the
safety and security of the general public. A major challenge is defining the parameters
within which technology can be used and how the privacy and other rights of citizens can
be protected. A challenge is ensuring that the rights of citizens are protected.
The use of high technology in the criminal justice system is in its infancy,
although concerns are already being raised. In some instances, technology has
obvious benefits; for example, allowing prison inmates to conduct video chats
with their loved ones who may be unable to travel to the institution for visits,
or realizing a reduction in reoffending by sex offenders who are monitored via
GPS. 104 On the other hand, the use of CPS tracking devices raise privacy issues
and the question of whether there should be limits on the intrusion of technology in the lives of offenders.
Technology now allows any citizen with a cellphone or PDA to record, photograph, transmit, and receive information instantaneously, without filters and
outside mainstream media, which has traditionally dominated the production
CHAPTER 3: Considerations in the Study of Criminal Justice
55
and dissemination of news. Citizens are involved in creating news, rather than being
passive consumers of information. The speed at which photos and videos of events
travel has transcended traditional media and the justice system itself. This is having an
impact on communities, on persons who are engaged in disruptive activities, and on
criminal justice personnel, particularly the police.
ote that not all criminal justice personnel are subject to the eye of cellphones and
PDAs: Probation officers, judges, Crown counsel, corrections officers, parole board
members, and parole officers conduct their business away from public (and camera)
view. Social media has had the greatest impact on the police.
ADDRESSING THE NEEDS OF CRIME VICTIMS
Crime affects victims physically, psychologically, emotionally, financ ially, and
socially. I05 After the initial trauma of the crime, victims can be made to feel worse by
the actions of criminal justice officials, resulting in re-victimization.
The federal Canadian Victims Bill of Rights (S.C. 2015, c. 13, s. 2) sets out a number
of statutory rights for the victims of crime, including the right to information , participation, protection, and restitution. These rights include being provided with information
on victim programs and services, and on offenders' progress through the system. There
is also provincial and territorial legislation designed to ensure that crime victims have
Re-victimization
The negative impact on victims of crime
caused by the decisions and actions of
criminal justice personnel.
rights in the criminal justice process.
Despite this, many crime victims find the justice system to be complex and confusing,
and they have difficulty understanding the decisions that are made and the sanctions
that are imposed on their perpetrators. Although victims are a heterogeneous group
with diverse needs and perceptions, there are common themes in their complaints and
concerns. In the adversarial system of justice, crime victims are often an afterthought.
Criticisms that may be voiced by victims include not receiving sufficient information
about developments in the case and being excluded from key decisions that are made
throughout the criminal justice process.
This has been compounded by criminal justice system personnel who are not trained
to be sensitive to the needs of crime victims. A study of the survivors of sexual violence
in three Canadian cities assault ( = 114) found that just over 50 percent of the women
had no confidence in the police, and two-thirds indicated that they did not have confidence in the criminal justice system or the criminal court process. 106
THE HEALTH AND WELLNESS OF OFFENDERS
AND CRIMINAL JUSTICE PROFESSIONALS
There is an increasing recognition that the adversarial system of justice, with its sole
focus on the alleged criminal behaviour of the accused, has obscured larger health and
wellness issues that may have played a role in the behaviour and that must be addressed
if intervention efforts are to be successful. Studies have discovered that many offenders
are suffering from trauma due to their experiences as children and adults.
There is also attention being given to the health and wellness of criminal justice
professionals. This has resulted in the development of assessment protocols as well as
a number of intervention and assistance programs. The health and wellness issue is
discussed throughout the text.
Of particular concern is the experience of women professionals in the criminal
justice system. The materials presented in this text reveal that women who work in
policing, the legal system, and corrections are subject to harassment and discriminatory
treatment. This may have a significant impact on their health and well-being.
56
Part I: Canadian Criminal Justice: Setting the Framework
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THE LACK OF THE DIVERSITY AMONG CRIMINAL
JUSTICE PROFESSIONALS
Ideally'. the ~rofile ~f criminal justice professionals should reflect the diversity of
Canadian society. H1stoncally, the police services, courts, and systems of corrections
have ~ee~ s~affed primarily by Caucasian males. There has been some progress.
Statistics md1cate, for example, that there have been significant increases in the numbers of women working in justice-related occupations. Women now comprise the following percentage of these occupations: judges, 36 percent versus 14 percent in 1991;
lawyers and notaries, 42 percent; probation and parole officers, 65 percent; correctional
service officers, 32 percent; and sworn police officers, 20 percent versus 7 percent in
199 l . 107 Although trending in the right direction, there is sti ll insufficient gender diversity in the criminal justice professions.
The absence of Canada-wide data precludes a determination of the numbers of
Indigenous persons, persons from racialized groups, and others from visible/cultural/
religious minority groups who work in the criminal justice system . Some information
is availab le from police services (discussed in Chapter 4 ), and a number of reports
have identified the lack of diversity in the judiciary as a major issue (discussed in
Chapter 7).
SUMMARY
This chapter was designed to provide background context to the study of the Canadian
criminal justice system . Inequality, racism, prejudice, and discrimination were introduced as features of Canadian society. These are often manifested in racial profiling
and the racialization of groups and individuals. Women, Indigenous persons, Muslims,
and sexual minorities have lived experiences that affect their quality of life and may
place them at risk of being victimized or of coming into conflict with the law.
Additional considerations in the study of the criminal justice system are the escalating costs of criminal justice and the question as to whether the Canadian public
is getting "value for money"; the changing boundaries of criminal justice agencies
as reflected in the development of multi-agency partnerships; the challenges posed
by the rise of the surveillance society due to the pervasiveness of technology; the
challenges faced by crime victims; concerns with the health and wellness of
offenders and criminal justice professionals; and the lack of diversity among crim inal
justice professionals.
KEY POINTS REVIEW
1. Although Canada prides itself on being a diverse, multicultural society, there are fau lt
lines between groups.
2. A key feature of Canadian society is inequality, as reflected in the gap in workplace earnings between men and women.
3. Racism, prejudice, and discrimination have been long-standing features of Canadian
society and are manifested in the criminal justice system.
4. Canadian scholars have given relativel y little attention to the relationships between race,
crime, and criminal justice.
5. Key concepts in the discussion of racism, prejudice, and discrimination are racialized
persons, racialization , and racial profiling.
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CHAPTER 3: Considerations in the Study of Criminal Justice
57
6. Racial profiling can occur in society and in the criminal justice system and can have a
profound effect on the individual who is profiled.
7. The level of income and the socio-economic status of women is closely linked to their
level of life satisfaction, health, and mental health , which are, in turn , associated with
their risk of victimization.
8. The subordin ate political and economic condition of Indigenous persons is a consequence of their colonization by Europeans and government policies, including the residential school system.
9. Indigenous persons are overrepresented at all stages of the criminal justice system as
both victims and offenders.
10. Indigenous women face unique challenges that place them at risk of victimization.
11. Persons with various sexual orientations may encounter prejudice and discrimination,
which place them at risk of victimization and involvement in the justice system .
12. Muslims in Canada have experi enced prejudice and discrimination, as reflected in
recent events in the province of Quebec.
13. The historical record reveals that Blacks in Canada have been subjected to racism and
discrimination historically and in contemporary times.
14. Additional issues surrounding the criminal justice system include the escalating costs of
the criminal justice system, the changing boundaries of criminal justice agencies, the
rise of the surveillance society, the needs of crime victims, the health and wellness of
offenders and criminal justice professionals, and the absence of diversity in the criminal
justice system workforce.
KEY TERM QUESTIONS
1. Define and describe racism, prejudice, and discrimination and their role in Canadian
society.
2. Define racialized persons, racialization, and racial profiling and describe why these
concepts are important in any sh1dy of the criminal justice system.
3. What concerns surround the potential re-victimization of crime victims by the criminal
justice system?
CRITICAL THINKING EXERCISE
Critical Thinking Exercise 3.1
Indigenous Experiences
The study of the involvement of Indigenous persons in the criminal justice system requires
an understanding of their historical and contemporary circumstances. Watch the film We
Will Be Free at https://www.youtube.com/watch?v=0XT2JXe8mnA.
Your Thoughts?
1. What are your five take-aways from the film?
2. In what way does the film ass ist you in understanding the involvement of Indigenous
peoples in the criminal justice system and how this may be best addressed?
58
Part I: Canadian Criminal Justice: Setting the Framework
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CLASS/GROUP DISCUSSION EXERCISE
Class/Group Discussion 3.1
The "Colonized Mind" of Indigenous Persons
Jana-Rae Yerxa is Anishinaabe from Little Eagle and Couchiching First ation and belongs
to the S~urgeon clan: She uses the concept of the "colonized mind" of Indigenous persons
to expl~,111 the expene'.1ces of Indigenous peoples and their perspectives and perceptions.
Access The _LJnravellmg of a Colonized Mind" at VAW Legal Information Resource, at
http://vawlaw1nfo.ca/un?erstanding-the-first-nation-metis-and-inuit-context/placing-violence
-aga1nst-first-nahon-mehs-and-inuit-women-in-historical-context.
Your Thoughts?
1. How might the notion of the "colonized mind" assist in understanding the experience of
Indigenous peoples with the criminal justice system?
2. Why would it be important for persons who work in the criminal justice system to under-
stand the notion of the "colonized mind" among Indigenous peoples?
MEDIA LINKS
Racism and Discrimination
"History of Racism in Canada," British Columbia Teachers' Federation, March 27, 2012.
h ttps://www.you tube.com/watch ?v=dvqXh 8 3IJgM
"Racial Profiling by Stores, Landlords and Companies: Are We Racist?" CBC Marketplace,
February 26, 2016, https://www.youtube.com/watch?v=WjmDwWUhEpg&list
=PLeyJPHbRnCaZmzkCwy3-8ykUZm_8B9kKM
"Is Winnipeg Really the Most Racist City in Canada?" Winnipeg Altemative Media,
January 26, 2015 , https://www.youtube.com/watch?v=svOxBkbOHXY
Women
"Did You Know? The Famous Five and the Persons Case," CPAC, March 17, 2014,
https://www.youtube.com/watch?v=if_pyx5dm9Y
Indigenous Persons
"Stolen Children: Residential School Survivors Speak Out," The
https://www.youtube.com/watch?v=vdR9HcmiXl.A
ational, June 2, 2015 ,
"Canadian History and the Indian Residential School System," School District 27 Residential
Schools and Reconciliation, July 17, 2014, https://www.youtube.com/watch?v=6-28Z93hCOI
"Full Story: Fai ling Canada's First ations Children," 16x9 on Global, March 5, 2016,
https://www.youtube.com/watch?v=xhEh-D7 lRQc
"Our Home and ative Land- Wikwemikong," CPAC, April 13, 2010, https://www.youtube
.com/watch ?v=ell 3X6Afn 3U
"Shit Canadians Say to Aboriginal Women," March 2, 2012, https://www.youtube.com/
watch?v= 7m KZ7PBfCXA
Finding Dawn, ational Film Board, 2006, https://www.nfb.ca/film/finding_dawn
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CHAPTER 3: Considerations in the Study of Criminal Justice
59
"Highway of Tears," CBS
ews, December 21, 2013, https://www.cbsnews.com/videos/
highway-of-tears-2
Blacks
"Deeply Rooted," CBC Short Docs, http://www.cbc.ca/shortdocs/shorts/deeply-rooted
Journey to Justice, ational Film Board of Canada, 2000, https://www.nfb.ca/playlists/
nfb_celebrates_black_history_month/playback/# 16
"Being Black in Canada," CBC
watch?v=Eiel WQe2Cx0
ews, March 14, 2014, https://www.youtube.com/
"Stolen from Africville," Stolen from Africa, May 14, 2014, https://www.youtube.com/
watch?v=_gSr H5_nk0
"The Black Experience Project," July 21 , 2017, https://vimeo.com/226503 372
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24. F. Merali. 201 7,March 6." ewSurvey Finds Racism Is 'Alive
and Well' in B.C.," CBC News. http://www.cbc.ca/beta/news
/canada/british-columbia/vancity-poll-on-racism-1.4011796.
25. Province of Ontario. 2017 . A Better Way Forward: Ontario's
3-Year Anti-Racism Strategic Plan. Toronto: Queen's Printer for
Ontario. https://files.ontario.ca/ar-200 l_ard_report_tagged
_final-s.pdf.
26. National Council on Welfare. 2012. Poverty Profile: Special
Edition. Ottawa: Author, p. I. https://www.canada.ca/content/
dam/esdc-edsc/migration/documents/eng/communities/reports/
poverty_profile/snapshot.pdf.
27. Ontario Human Rights Commission. n.d. "Racial
Discrimination, Race and Racism" [fact sheet]. http://
www.ohrc.on.ca/en/racial-discrimination-race-and-racism
-fact-sheet.
28. Ontario Human Rights Commission. Under Suspicion ,
p. 94.
NEL
31. Ibid., p. 19.
32. Ibid. , p. 21.
33. A. Go. 20 I 4, July 14. "The Access to Justice Challenges
of Chinese Canadians," Legal Aid Ontario Blog. http://
blog . legalaid .on .ca/2014/07 /14/the-access-to-j ustice
-challenges-of-chinese-canadians.
34. Department of Justice Canada. 2014. Report of the Deputy
Minister Advisory Panel on Criminal Legal Aid. Ottawa :
Author.
http://www.justice.gc.ca/eng/rp-pr/csj-sjc/esc-cde/
rr 14/index.html.
35. Commission des droits de la personne et des droits de la jeunesse (Commission on Human Rights and Youth Rights).
2011. Racial Profiling and Systemic Discrimination of
Racialized Youth. Quebec: Author, p. 49. http://www.cdpdj
.qc.ca/publications/Profiling_final_E .pdf.
36. Ontario Human Rights Commission. 2003. Paying the Price:
The Human Cost of Racial Profiling. Toronto: Author. http://
www.ohrc.on.ca/sites/default/files/attachments/Paying_the
_price% 3A_The_h u man_cost_of_racial_profil ing. pdf.
37. K. Connely, W. Cukier, C. Grant, K. Neuman, K. NewmanBremang, and M. Wisdom . 2014. The Black Experience
Project: A Greater Toronto Area Study Capturing the Lived
Experience of a Diverse Community. Phase 1-Community
Engagement. Final Report. Toronto: Environics Institute,
p. I 0. http://www.environicsinstitute.org/uploads/institute
-projects/black%20experi ence%20project%20gta%20-%20
phase%20 I %20final %20report. pelf.
38. Environics Institute for Survey Resea rch, Survey of Muslims
in Canada 2016, p. 30.
39. Status of Women Canada. n.cl. "The History of the Persons
Case." http://www.swc-dc.gc.ca/commernoration/pcl-jp/history
-histoire-en.htrnl.
40. Ibicl.
41. M. Turcotte. 2011. "Women and Education," in Women
in Canada: A Gender-Based Statistical Report (6th ed. ).
Statistics Canada Catalogue no. 89-503-X. Ottawa:
Ministry of Industry, p. 6. http://www.statcan.gc.ca/pub/89
-503-x/20 I 000 l/article/11542-eng.pclf.
42. Ibid ., p. 17.
43. T.H. Mahon y. 2011. "Women and the Criminal Justice
Sys tem," in Women in Canada: A Gender-Based Statistical
Report (6 th eel .). Statistics Canada Catalogue no.
89-503-X. Ottawa: Ministry of Industry, p. 12. http://www
.statcan .gc.ca/pub/89-50 3-x/20 I 000 l/article/11416-eng
.pelf.
CHAPTER 3: Considerations in the Study of Criminal Justice
61
44. M. Turcotte. 2011. ''Women and Health," in Women in
Canada: A Gender-Based Statistical Report (6th ed.).
Statistics Canada Catalogue no. 89-503-X. Ottawa: Ministry
of Industry, pp. 6-7. http://www.statcan.gc.ca/pub/89
-503-x/201000 l/article/1154 3-eng. pdf.
58. A.R. Hatala, T. Pearl, K. Bird- aytowhow, A. Judge, E.
Sjoblom, and L. Liebenberg. 201 7. "'I Have Strong Hopes
for the Future': Time Orientations and Resilience among
Canadian Indigenous Youth," Qualitative Health Research,
27(9), 1330-1344atp.1334.
45. Ibid ., p. 7.
59. Truth and Reconciliation Commission of Canada. 2015.
Honouring the Truth , Reconciling for the Future: Summary
of the Final Report of the Truth and Reconciliation
Commission of Canada. Winnipeg: Author. http://www.trc
.ca/websi tes/trcinstitution/File/2015/Honouring_the_Truth
_Reconciling_for_the_Future_July_23_2015. pdf.
46. Ibid ., p. 21.
47. T.H. Mahony, J. Jacob, and H. Hobson. 2017. "Women
and the Criminal Justice System," in Women in Canada: A
Gender-Based Statistical Report (7th ed.). Statistics Canada
Catalogue no. 89-503-X. Ottawa: Minister of Industry,
p. 4.http://www.statcan.gc.ca/pub/89-503-x/2015001/article/
14785-eng.pdf.
48. Ibid. , p. 5.
49. Ibid ., p. 5.
50. Ibid., p. 12.
51. Department of Justice Canada. 2017. "JustFacts: Indigenous
Overrepresentation in the Criminal Justice System." http://
,vww.justice.gc.ca/eng/rp-pr/jr/jf-pf/2017 /jan02.htrnl.
52. Mahony, Jacob, and Hobson, "Women and the Criminal
Justice System," p. 7.
53. V. O'Donnell and S. Wallace. 2011. "First ations, Metis
and Inuit Women," in Women in Canada: A Gender-Based
Statistical Report (6th ed.). Statistics Canada Catalogue no.
89-503-X. Ottawa: Minister of Industry, p. 42. http://www
.sta tea n .gc. ca/pu b/89-503-x/2010001 /a rti cl e/1144 2
-eng.pclf.
54. M. McNally and D. Martin. 20 17. "First ations, Inuit and
Metis Health: Considerations for Canadian Health Leaders
in the Wake of the Truth and Reconciliation Commission
of Canada Report," Healthcare Management Forum, 30(2),
117-122.
55.
ative Women's Association of Canada. 2007, June.
Aboriginal Women and Gangs: An Issue Paper. Paper presented at the
ational Aboriginal Women's Summit,
Corner Brook,
L. https://www.nwac .ca/wp-content/
uploacls/2015/05/2009-Aborigi nal-Women-ancl-Gangs-an
-Issue-Paper. pelf.
56. Canadian Council of Provincial Child and Youth Advocates.
2010, June 23. Aboriginal Children and Youth in Canada:
Canada Must Do Better [position paper]. http://www.cyanb
.ca/images/positionpaper-e.pclf.
57. M.B. Castellano, L. Archibald , and M. Degagne.
2008. From Truth to Reconciliation: Transfonning
the Legacy of Residential Schools . Ottawa: Aboriginal
Healing
Foundation.
http://www.ahf.ca/clownloacls/
from-tru th-to-reconci l ia tion-tra nsform i ng-th e-1egacy-of
-resiclen tial-schools. pelf.
62
Part I: Canadian Criminal Justice: Setting the Framework
60. D. Chansonneuve. 2007. "Addictive Behaviours Among
Aboriginal People in Canada," Ottawa: Aboriginal Healing
Foundation.
http://www.ahf.ca/downloacls/addictive
-behaviours. pelf.
61. Castellano, Archibald, and Degagne, From Truth to
Reconciliation: Transforming the Legacy of Residential Schools.
62. L. Hensley. 2015, July 9. "Residential School System
Was 'Cultural Genocide,' Most Canadians Believe
According to Poll ," ational Post. http://nationalpost.com/
news/ca nada/resiclen ti a I-school-system-was-cu I tu ra I
-genocicle-most-canadians-believe-accorcling-to-poll/wcm/
0f5cb0 lcl-3 716-434a-a4a 1-dc 77465c8e0b.
63. K. Bennett. 2016, ovember 9. "Telling the Story of
Hundreds of Inuit, Sick with TB, Who Were Shipped to
Hamilton," CBC 1 ews. http://www.cbc.ca/news/canada/
ha mi Iton/tel Ii ng-the-story-of-h u nd recls-of-i nui t-si ck-wi th-tb
-who-were-shipped-to-hamilton-1. 3842103.
64. J. Moffatt, M. Mayan, and R. Long. 2013. "Sanitariums and
the Canadian Colonial Legacy: The Untold Experiences
of Tuberculosis Treatment," Qualitative Health Research,
23(12), 1591-1599.
65. O'Donnell and Wallace, "First
Women ," p. 17.
ations, Metis and Inuit
66. Ibid ., pp. 22-23.
67. Ibid ., p. 26.
68. Ibid., p. 40.
69. Mahony, Jacob, and Hobson, "Women and the Criminal
Justice System," p. 7.
70. Ibid. , p. 22.
71. D.A. Brownridge. 2008. "Understanding the Elevated
Risk of Partner Violence Against Aboriginal Women: A
Comparison of Two ationally Representative Surveys of
Canada," Joumal of Family Violence, 23 (5), 353-367.
72. Mahony, Jacob, and Hobson, "Women and the Criminal
Justice System," p.16.
73. M.E. Pearce,A.H. Blair, M. Teegee, S.W. Pan , V. Thomas, H.
Zhang, M.T. Schechter, and P. I. Spittal. 2015. "The Cedar
NEL
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Project: Historical Trauma and Yul nerabilityto Sexual Assault
Among Young Aboriginal Women Who Use Illicit Drugs
111 Two Canadian Cities," Violence Against Women, 21(3),
313-329.
http://refugeeresearch.net/wp-content/uploads/
2017 /05/Pearce-et-al-2015-Sexual-assaul t-against-yo ung
-Aboriginal-women.pdf.
I
I
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74. A. McGillivray and B. Comaskey. 1999. Black Eyes All of the
Time: Intimate Violence, Aboriginal Women, and the Justice
System. Toronto: University of Toronto Press.
75. Mahony, Jacob, and Hobson, "Women and the Criminal
Justice System," p. 10.
76. Ibid.
77. L. Barnaby, R. Penn, and P.G. Erickson. 2010. Drugs,
Homelessness 6 Health: Homeless Youth Speak Out About
Hann Reduction. Toronto: Wellesley Institute. http://
homelesshub.ca/sites/default/files/homelessyouthspeakout
_shoutclinic201 O_v2. pdf.
78.
.S. Quintana, J. Rosenthal , and J. Krehely. 2010. On
the Streets: The Federal Response to Gay and Transgender
Homeless Youth. Washington, DC: Center for American
Progress. h ttps:/led n .a merica n progress.org/wp-con tent/
uploads/issues/2010/06/pdf/lgbtyouth homelessness. pdf.
79. Ibid.
80. E. Saewyc, A. Smith, B. Dixon-Bingham, D. Brunanski, S.
Hunt, S. Simon, M. orthcott, and The McCreary Centre
Society. 2008. Moving Upstream: Aboriginal Marginalized
and Street Involved Youth in B.C. Vancouver: McCreary
Centre Society. http://www.mcs.bc.ca/pdf/Moving_Upstream
_Websmall. pdf.
81. I.A. Abramovich. 2012. " o Safe Place to Go: LGBTQ
Youth Homelessness in Canada: Reviewing the Literature,"
Canadian Journal of Family and Youth, 4(1), 29-51 at p. 33 .
82. J. Ristock, A. Zoccole, L. Passante, and J. Potskin. 2017.
"Impacts of Colonization on Indigenous Two-Spirit/
LGBTQ Canadians' Experiences of Migration, Mobility,
and Relationship Violence," Sexualities. Advance online
publication. doi: 10. l l 77/l 363460716681474
83. Ibid., p. 8.
84. Ibid. , p. 8.
85. T. Kheiriddin. 2017, March 13. "Guess What Canada:
We're Kinda Racists, Too," iPolitics Insights. http://ipolitics
.ca/2017 /03/13/guess-what-canada-were-racists.
86. Environics Institute for Survey Research, Survey of Muslims
in Canada 2016, p. 38.
87. M. Scotti. 2017, January 31. "Quebec City Shooting: Is
Islamophobia 'More Manifested' in Quebec?" Global ews.
http://globalnews.ca/news/3 2165 2 5/quebec-city-shooting-is
-islamophobia-more-manifested-in-quebec.
NEL
88. J. Montpetit. 2016, December 4. "Inside Quebec's Far Right:
A Secretive Onlme Group Steps into the Real World," CBC
ews. http://www.cbc.ca/news/canada/montreal/quebec-far
-right-la-meute-1 . 3876225.
89. J. Montpetit. 2017, July 18. "Quebec City Mayor Worried
about Far-Right Group Linked to Cemetery Referendum,"
CBC
ews.
http://www.cbc.ca/news/canada/montreal
/la-meute-far-right-saint-apollinai re-cemetery-1.4 210975.
90. T.T. Ha. 2017, July 19. "Muslim Cemetery Fallout Deepens
as Quebec Mosque Reveals It Received Hate Package," Globe
and Mail. https://www. theglobeandmail.com/news/national
/ha tefu I-package-sen t-to-qu e b ec -ci ty-mosque-before
-mus! im-cemetery-vote/article 35729 286.
91. R. Maynard. 2017. Policing Black Lives: State Violence in
Canada from Slavery to the Present. Halifax and Winnipeg:
Fernwood Press.
92. E.M.A. Thornhill. 2008. "So Seldom for Us, So Often
Against Us: Blacks and Law in Canada," Journal of Black
Studies, 38(3), 321-337 at p. 326.
93. Ibid.
94. Council of Parties of the
ova Scotia Home for Colored
Children Restorative Inquiry. 2017. Council of Parties
Report: Winter 2016117. Halifax: Author, p. 12. https://
restora tivei nqui ry.ca/si tes/defa ult/files/in 1i ne/documen ts
/Council_of_parties_Report_WEB.pdf.
95. Ministry of Children and Youth Services. 2017, July 26.
"Helping Black Youth Succeed Through Mentorship"
[news release]. https://news.ontario.ca/mcys/en/201 7/07 /
h el ping-black-yo u th-succeed-th rough-men torsh i p
. h tm 1? _ga =2. 2 2 3 7 649 5 5 .1 92 494 5 5 7. 150914 5 I 07
-1987501095.1509145107.
96. S. Contenta, L. Monsebraaten, and J. Rankin. 2016, June
23. "CAS Study Reveals Stark Racial Disparities for Blacks,
Aboriginals," Toronto Star. https://www. thestar.com/news/
canada/2016/06/2 3/cas-study-reveals-stark-racial-disparities
-for-blacks-aboriginals. h tm 1.
97. S. Anderson. 2016, March 9. "Today's Feminist Problem?
Black Women Are Still Invisible," Globe and Mail. https://
www. thegl o bea nd ma i I. com/op in ion/toda ys-feminist
-problem-black-women-a re-sti 11-i nvisible/article29082 37 5.
98. Ibid.
99. Owusu-Bempah and Wortley, "Race, Crime, and Criminal
Justice in Canada," p. 282.
100. B. Runciman and G. Baker. 2017. Delaying Justice Is
Denying Justice. An Urgent eed to Address Lengthy Court
Delays in Canada. Ottawa: Standing Senate Committee on
Legal and Constitutional Affairs, p. 7. https://sencanada.ca/
con tent/sen/com mi ttee/4 21 /LC JC/reports/Court_Delays_
Final_Report_e.pdf.
CHAPTER 3: Considerations in the Study of Criminal Justice
63
101. T. Gabor. 2015. "Costs of Crime and Criminal Justice
Responses" [Research summary 2015-S022]. https://www
. pu bl icsafety.gc . ca/en t/rsrcs/pblctns/20l5-s022/2015
-s022-en .pdf.
102 . T. Gabor. 2015. Costs of Crime and Criminal Justice
Responses [Research report 2015-R022]. Ottawa: Public
Safety Canada. https://www.publicsafety.gc .ca/cnt/rsrcs/
pblctns/20 l 5-r022/20 l 5-r022-en. pdf.
Griffiths and D. Murdoch . 2018. Canadian
Corrections (5th ed.). Toronto: elson.
103 . C.T.
104. P. Bulman. 2013. "Sex Offenders Monitored by CPS
Found to Commit Fewer Crimes." IJ Journal, 271, 22-25.
http://www.nij.gov/journals/271/gps-monitoring.htm .
105. M. Lindsay. 2014. A Survey of Survivors of Serna[ Violence
in Three Canadian Cities. Ottawa: Department of Justice
Canada, pp. 14-15 . http://www.justice.gc.ca/eng/rp-pr/
cj-jp/victim/rr l 3_19/rr 13_19.pdf.
106. Ibid ., p. 7.
107. Mahony, Jacob, and Hobson, "Women and the Criminal
Justice System," p. 41.
(
64
Part I: Canadian Criminal Justice: Setting the Framework
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Chapter 4: The Structure and Roles of the Police
Chapter 5: Police Powers and Decision-Making
Chapter 6: Police Strategies, Operations, and Engagement
Policing is perhaps the most high-profile, dynamic, and oftentimes controversial component of the Canadian criminal justice system. Police officers
are required to play a multifaceted role: counsellor, psychologist, enforcer,
mediator, and listener. They must be able to understand and empathize with
the feelings and frustrations of crime victims; at the same time, they must
develop strategies to cope with the dark side of human behaviour, which they
encounter every day. Officers must walk a fine line between carrying out their
enforcement role and ensuring that the rights of law-abiding citizens and
suspects are protected.
How police services and police officers respond to the multifaceted
demands that are placed on them affects individual citizens and their neighbourhoods and communities, as well as officers and the police services within
wh ich they work. Police are the only agents of the criminal justice system
with whom most Canadians ever have contact. This contact often gives rise
to concerns with the powers and decision-making of the police.
In contrast to personnel in other components of the justice system, police
officers work in environments that are always changing. Technological
developments, most notably the prevalence of mobile phone cameras,
Internet-based platforms such as YouTube, and social networking sites such
as Facebook, have significantly increased the visibility of police actions. 1
Concurrent with this has been an expansion in the structures of oversight
and accountabili ty of the police.
The chapters in this section focus on the various facets of Canadian
policing. Chapter 4 describes the structure and operation of police services
in this country.
Chapter 5 focuses on police powers and decision-making, and Chapter 6
examines the strategies that the police employ to prevent and respond
to crime.
67
CHAPTER 4
THE STRUCTURE ANO ROLES
OF THE POLICE
After reading this chapter, you should be able to
• Discuss the evolution of policing in Canada.
• Discuss the current structure of policing in Canada.
• Define police work and describe the issues that surround police work in a
democratic society.
• Discuss the various roles of the police.
• Discuss what is meant by political policing.
• Describe the structures of police governance.
• Describe the recruitment and training of police officers.
• Describe what is meant by the working personality of police officers and the
issues that surround this concept.
• Discuss the challenges of police work, including occupational stress injuries and the
experience of women police officers with sexual harassment and discrimination .
PERSPECTIVE
A Day in the Life of a Toronto Police Officer
Th~ old floorboard creaks as a tall, burly man with a scruffy beard comes barging out of the
painted green door. The hallway is stuffy in the old apartment building near Parkdale neighbourhood. It's just after 10 p.m. on Saturday night and many of the neighbours poke their heads out to
eavesdrop while others flee from the scene and wait outside for the incident to be over.
An ambulance waits outside the apartment with its lights on. A woman without socks or shoes
waits, a chunk of flesh exposed on her head after her black hair was ripped out. Her boyfriend
came home late after a night at the bar and she found messages to another woman on his phone.
When she approached him about it, he attacked her.
Aged, brown walls surround the police officers in the hallway, the only exit is now 50 feet
behind them. Abruptly the man comes closer and raises his arms while simultaneously yelling at
the officers.
"Ha-three against one, let's go," he bellows.
The situation is too tight for the officers to use a Taser, and pepper spray would only leave the
officers struggling in a mist that burns like hot sauce in your eyes. It would impact the officers
more than the man who had been drinking.
In the blink of an eye, everyone is pinned against the floor, wrestling against each other in the
cramped hallway. The man slammed into the female officer during the commotion and it is hard to
determine who is who in the brawl.
"Give us the knife," yells one of the officers. "Stop resisting .•
The brawl lasts only a few seconds, but the eerily silent hallway makes the situation even more
uncomfortable to those watching from their apartment doors. More uniformed officers have arrived
in the hallway now. One of the original officers gets the man in handcuffs and says he is "HBD"has been drinking. A paramedic assesses the man for injuries and then places him into a police
vehicle.
Inside the ambulance the woman is providing her side of the story to one of the younger
police officers. His demeanour is calm and collected; he speaks just above a whisper. The
woman agrees to give a video statement back at the station, the best form of evidence in court.
Unfortunately, it is common for the victims to refuse pressing charges even after they call police.
As the woman exits the ambulance and walks barefoot toward the apartment to gather her
things, her boyfriend can be heard viciously banging on the door inside the court vehicle as it pulls
away down the narrow street.
The two street lights act as a spotlight on top of the officers as they discuss the incidents that
unfolded. They plan their next moves and actions. One will ride with the victim to the station, two
will ride in the larger vehicle with the suspect, and 14 Division Sergeant Nelson Barreira will continue doing loops of the neighbourhood going over and over in his head what happened, just like
he does every day on the job, for every call.
Source: Excerpted from A. Kelly. 2016, June 11 . "What It's Really Like: Being a Toronto Police Officer," Toronto City News.
http://toronto.citynews.ca/2016/06/11 /what-its-really-like-being-a-toronto-police-officer. Used with permission of
Rogers Media Inc. All rights reserved.
DEFINING POLICE WORK
Policing
The activities of any individual or
organization acting legally on behalf
of public or private organizations or
persons to maintain security or
social order.
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A definition of policing must include both public and private police and is the
activities of any individual or organization acting legally on behalf of public or private
organizations or persons to maintain security or social order while empowered by either
public or private contract, regulations or policies, written or verbal. 2
The above quote is an acknowledgement that the public police no longer have a
monopoly on policing, although with a few exceptions, they retain a monopoly on the
use of force. An increasing role in safety and security in the community is being played
CHAPTER 4: The Structure and Roles of the Police
69
by private security services and parapolice officers-that is, community constables_ that
have limited powers of enforcement. Police scholars have referred to the new reality as
the pluralization of policing.
Pluralization of policing
THE LEGISLATIVE FRAMEWORK OF POLICE WORK
The expansion of policing beyond the
public police to include parapolice and
private security.
Police officers carry out their tasks within a number of legislative frameworks that define
their roles, powers, and responsibilities. The Canadian Charter of Rights and Freedoms
is perhaps the most impactful on the powers and activities of the police, pa_rt'.cularly_the
"Legal Ri ghts" section (see Chapter 1). There is also provincial and mt'.mc1pal legislation, which includes a wide range of statutes such as motor vehicle admm1stration acts,
highway traffic acts, liquor acts, and provincial/municipal police acts. All of these provide the framework within which police services are structured and delivered. As well ,
the various police acts set out the principles of policing, providing for and defining the
activities of police commissions and municipal police boards, and setting out the processes for filing complaints against and the disciplinary procedures for police officers.
PERSPECTIVES ON THE ROLE OF THE POLICE
There are two competing perspectives on the role of the police, the social contract
perspective and the radical perspective. These perspectives are similar in orientation to
the value consensus and conflict models of the origins and application of the criminal
law discussed in Chapter 1.
THE SOCIAL CONTRACT PERSPECTIVE
The social contract perspective views the police as a politically neutral force that acts
primarily to enforce the law and protect the public. The power of police and their mandate to use force aga inst citizens is justified under the social contract vision of society.
The police use of force as necessary to maintain order and maximize collective good
by maintaining a safe and workable society. Citizens are understood to voluntarily surrender some of their power and rights and delegate them to the state and to the police
force. The police are viewed as a politically neutral force that uses its powers to enforce
the laws within the confines of a defined set of rules. The social contract perspective
informs mainstream views of policing, which see police as a protective force against
crime and social disorder.
Social contract perspective
(on the role of the police)
A perspective that considers the police
to be a politically neutral force that acts
primarily to enforce the law and protect
the public.
Radical perspective (of the
role of the police)
A perspective that views the police as
an instrument used by governments and
powerful interests to suppress dissent,
stifle protest, and help maintain the
status quo.
THE RADICAL PERSPECTIVE
While the social contract perspective depicts the police as a neutral agent of the State
providing for the safety and security of citizens, the proponents of the radical perspective point out that since the police support the government, which , in turn, supports the
interests of the ruling class, the police are never politically neutral.3
The rad ical perspective on the police is captured in the following narrative:
Policing is part of the complex technologies, or methods of control {such as corrections institutions, public health administration, public education administration and
corporate management) whose primary function in history has been to consolidate
the social power of the capital ist class and administer the working class and poor. ...
[T]he police are integral to the manner in which the state controls and contains civil
society in general and people in particular. 4
70
Part II: The Police
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T he radical perspective considers police as a repressive force that is instrumental
in the maintenance of an unjust social system: "The police are primarily utilized by
the government t~ mai1'.tain ~he status quo and to protect the powerful against any
perceived threats (Achv1stR1ghts.org.au). This includes conducting surveillance
on indiv_iduals a~d groups who are deemed to be a threat to national security and
suppressing public protests. For a radical perspective on the role of police in Canada,
view the documentary film Into the Fire (Ca nada Is a Police State), listed in Media
Links section at the end of this chapter.
Political policing
Secretive police investigative activities
and surveillance of persons and groups
deemed to be a threat to the stability
and status quo of the State.
NEL
Proponents of this perspective of the police and of Canadian society as a "police state"
cite as evidence the historical record . There are numerous historical and contemporary
examples wherein the police were used by the government to "pacify" the Canadian
west, so that it could be settled and developed; to break strikes and suppress citizen
protests; and to monitor the activities of Canadians who were/are deemed to be a threat
to the State. The persons most often the subject of government and police interest have
been those involved in various political activities and/or who had beliefs or engaged
in behaviour (including sexual) that we re viewed as a threat to the stabili ty and status
quo of the State. Continuing to the present, the police have spied on citizens and have
engaged in activities that violated citizens' rights. Police services, particularly the Royal
Canadian Mounted Police (RCMP) and the Canadian Security Intelligence Service
(C SIS ), have maintained extensive secret data files on citizens and engaged in activities
that have often been determined to be illegal.
Canadian scholars Reg Whitaker, Gregory Kealey, and Andrew Pamaby have
labelled this phenomenon political policing.5 There are numerous examples of this in
Canadian history and in contemporary times .
Throughout the 20th century, the RCMP carried out extensive survei ll ance of
politicians, university students, and facu lty, and it maintained confidential files on
hundreds of thousands of Canadians. Covert survei ll ance on university campuses
began during the First World War and continued into the late l 990s. 6,7 The force
was especially interested in left-wing student organizations and faculty during
the 1960s, and it used student informants as well as undercover police to gather
information. In the 1980s, a Roya l Commission that was investigating alleged
illegal activiti es of the RCMP reported that the RCMP Security Service (since
disbanded and replaced by the civi lian Canadian Security Intelligence Service)
maintained hundreds of thousands of files on Canadians. Police survei ll ance and
its impact on citizens' rights continues to be the source of controversy and this is
discussed in Chapter 5.
The terrorist attacks of 9/11 in the U.S. accelerated police surveillance on groups
and persons identified as posing a terrorist threat. In Canada, increasing concerns with
"homegrown terrorists" have led to an expansion of police powers and ongoing proposals
for legislation that would give the police even greater authority to conduct surveillance
of persons and groups deemed to pose a threat. "Extremist travellers," persons intent on
leaving Canada to join conflicts in other parts of the world and those returning from
conflict zones with terrorist training and combat experience, have become a major
focus of police services.
Whatever framework you bring to the understanding of the role of police in society,
there is no doubt that th ey are a powerful force. On the one hand, the police enjoy high
levels of public support; on the other, the police (along with the military) have a virtual
monopoly on legitimate force combined with an array of weapons and tactics that provide the potential for coercion and repression. As the front line of the criminal justice
CHAPTER 4: The Structure and Roles of the Police
71
system, the police have always been drawn into situations invol~ing social disorder and
public protests, including demonstrations against global capitalism.
POLICE WORK IN A DEMOCRATIC SOCIETY
The separation of powers between the police and government is. considered _an
important tenet of liberal democracy. The separation of powers assists '.n ensur_mg
that the police are not used in a partisan political way to harass and pumsh political
opponents and dissidents. There is also a separation of roles and powers between the
courts and the police. It is the police role to bring suspected offenders before the _co~rts
and the courts' role to decide on guilt or innocence and, in the case of conv1chon,
decide on punishment. Among all of the institutions and organizations in _so~iety, it
is the police that can have a direct impact on the rights and freedoms of md1v1dual
citizens. This is due to the powers that police officers are given under the law. All police
services operate in a political environment since the police are mandated to enforce
8
the criminal law, which reflects political values and political ends.
The Law Commission of Canada has identified four key values that form the framework with in which to understand police work in Canadian society:
• Justice: The police maintain peace and security in the community while ensuring that
individuals are treated fairly and human rights are respected.
• Equality: All citizens are entitled to policing services that contribute to their feelings of
safety and security.
• Accountability: The actions of police services, and police officers, are subject to review.
• Efficiency: Policing services must be cost-effective. 9
Ideally, policing in a democratic society is focused on tl1e safety and security of
citizens while ensuring that tl1e rights of citizens (and suspects) are protected. The
police are to be apolitical, fair, and impartial. It is in attempting to reconcile these
values-protecting public order and individual rights-that the inherent tensions
of policing in a democratic society are revealed . There are natural tensions between
the power and autl1ority of tl,e police and their legal mandate to maintain order on
the one hand, and the values and processes that exist in a democratic society on the
other. This tension is inevitable and, generally, irreconcilable. 10
These tensions may also result in conflicts between the police and other components
of the criminal justice system, notably the courts. Police officers often complain tl1at tl1e
rights of offenders are given more attention than those of victims and law-abiding citizens,
and officers are often frustrated when offenders are released on technicalities or receive
court sentences that they deem to be lenient. There is little doubt that the Charter and
court decisions have had a major impact on the powers and procedures of the police,
and this is considered in Chapter 5. The increasing use of technology in police work
has also raised concerns, in particular about the privacy of citizens, and this topic is also
addressed in Chapter 5. Concerns have also been raised about what is perceived to be the
increasing militarization of police services in Canada. See At Issue 4.1.
The governments and the public rely on the police to prevent and respond to crime
and to apprehend offenders; yet at the same time, these governments are comm itted
to the principles of democracy and clue process. It is not surprising, then, that police
officers often experience conflict in carrying out tl,eir duties and that the police are
often "caught in the middle." Police services often find themselves caught between
the directives of governments and persons involved in civil disobedience.
72
Part II: The Police
NEL
AT ISSUE 4.1
OFFICER FRIENDLY BECOMES GI JOE: SHOULD THE CANADIAN POLICE BE PREVENTED
FROM BECOMING MILITARIZED?
There are increasing concerns that police services in Canada are
becoming militarized, reflecting a trend that has occurred in the United
States. In the U.S., a study by the American Civil Liberties Union found
that "the militarization of American policing is evident in the training
that police officers receive, which encourages them to adopt a 'warrior'
mentality and think of the people they are supposed to serve as enemies, as well as in the equipment they use, such as battering rams,
flashbang grenades, and APCs [armoured personnel carriers]. "a
There are concerns that the militarization of the police is occurring
in Canada as well. The New Glasgow (Nova Scotia) Regional Police
Service, which serves the two communities of New Glasgow and
Trenton (combined population of approximately 12,500, according
to the 2016 Census), received a light-armoured vehicle from the
Department of National Defence (ONO) to be used in a variety of situations. By 2017, the police service's emergency response team (ER1)
had been disbanded and the police service was attempting to regift
the vehicle to another police service for free. b
In 2010, the Ottawa Police Service spent $340,000 to purchase an
armoured vehicle equipped with steel bodywork, machine-gun-proof
glass, gun ports, and a roof turret. c Records indicate that, in addition
to armoured vehicles (with the armaments removed), the ONO has
donated night-vision goggles and military apparel to police services.d
A major concern is that, rather than making communities safer and
more secure, militarization drives a wedge between the police and the
community and undermines the original principles of Sir Robert Peel
(see Police File 4.2).
QUESTIONS
1. What is your view of police services acquiring military equipment?
2. If you were on a municipal council, would you support the police
service acquiring an armoured personnel carrier?
3. How would you respond to the argument that this type of hardware
is required to counter terrorist threats?
• American Civil Liberties Union. 2014. War Comes Home: The Excessive Militarization
of American Policing. New York: Author, p. 3. https://www.aclu.org/siles/default/files/
assets/jus14-warcomeshome-report-web-rel1.pdf.
b P. Mulligan. 2017, May 30. "Nova Scotia Town Trying to Regilt Light Armoured
Vehicle It Doesn't Use," CBC News. httpJ/www.cbc.ca/news/canada/nova-scotia/
new-glasgow-police-cougar-light-armoured-vehicle-gifl-halifax-1.4138028.
' M. Spratt. 2014, August 15. "The Creeping Militarization of the Police," iPolitics.
http://www.ipolitics.ca/2014/08/15/the-creeping-militarization-of-the-police.
d D. Quan. 2014,August 29. "Canadian Forces Donate Surplus Military
Hardware to Police Agencies," Ganada.com. http://o.canada.com/news/national/
rcmp-defends-acquisition-of-surplus-military-hardware.
GOVERNANCE AND OVERSIGHT OF THE POLICE
While it is important that the police be free from political interference, there must
be governmental and judicial oversight of police activities. As one police scholar
has noted:
o other criminal justice professional comes under as much constant and public
scrutiny-but no other criminal justice professional wields so much discretion in
so many circumstances. The scrutiny is understandable when one realizes that the
police are power personified. 11
A key issue in any discussion of police work is how the police are to be governed. On
th e one hand, the police require a degree of operational autonomy to effectively and
efficiently carry out their mandated tasks. Given the nature of their mandated role, the
police need to be free from government interference and influence. It is important
that the police not become an instrument for implementing government policy or
supporting specific political agendas. Historically, this has been unavoidable .
On the other hand, the principles of due process and of a democratic society require
that there be mechanisms in place to govern the police, to ensure that police services
do not exceed their mandate and compromise the rights of citizens. However, as several
observers have noted, the precise nature and extent of the independence required by
the police has remained unclear. 12
Figure 4.1 sets out the structures of police governance. Note that there are differences in how federal, provincial, regional, and municipal police services are governed.
There are separate agencies for investigating complaints against the police, and these
NEL
CHAPTER 4: The Structure and Roles of the Police
73
Police Acts
Provide the legislative framework within which police services are structured a~d delivered and _set
out the principles of policing, the process for filing complaints against pollc~ officers, and d1sc1pllnary
procedures for officers, and they define the activities of police comm1ss1ons and police boards.
RCMPAct
• FIGURE 4.1
Structures of Police Governance
Provincial/Territorial Police Acts
(Except in NWT and Nunavut)
Policing Standards
They supplement police acts and set out how police services are to be maintained and delivered
(i.e., roles and responsibilities of police).
Police Boards and Commissions
Composed of community members and city council members, and are usually chaired by the ma_yor.
Authority derived from provincial police acts. Activities include hiring the chief constable, preparing
and overseeing the police budget, and authorizing increases in police personnel. Do not exist in
municipalities policed under contract by the RCMP.
are discussed in Chapter 5. Important to the discussion are the explanations of police
acts, policing standards, and police boards and police commissions.
DEFINING FEATURES OF THE POLICE ROLE
Two defining features of the police role are the authority of the police and the authority
to use force. The police can use their authority to deprive citizens of their freedom as
well as to use physical force and, in extreme circumstances, lethal force . Canadian police
officers derive their authority from the Criminal Code (R.S.C. 1985, c. C-46) and various
provincial statutes. The legal authority of police officers, however, does not automatically
translate into moral authority. The latter requires officers to establish their legitimacy in
13
the community. The importance of police legitimacy is discussed in Chapter 6.
Police observers have pointed out, however, that police officers are generally quite
subtle in their exercise of autl1ority. They often project it merely by being a uniformed
presence in public settings and by soliciting information from citizens.
Police acts
The legislative framework for police
service.
Policing standards
Provisions that set out how police
services are to be maintained and
delivered.
Police boards and police
commissions
Bodies that provide oversight of police.
Police officers also have the authority to use force. With tl1e exception of correctional officers, no otl1er personnel in the criminal justice system are invested with this
authority. This authority is integral to all facets of the police role, from selection and
training to operational patrol and high-risk policing situations. And while most incidents are resolved without the use of force, tl1e potential for its use is always present.
In recent yea rs there have been several high-profile cases involving police officers who
used force in encounter situations. The police use of force and its consequences for
police services, officers, suspects, and tl1e community is considered in Chapter 5.
THE EVER-EXPANDING POLICE ROLE
The primary activities of the police have traditionally been viewed as centring on three
major categories:
• Crime control involves responding to and investigating crimes, and patrolling the streets
to prevent offences from occurring.
74
Part II: The Police
NEL
• Order maintenance is designed to prevent and control behaviour that disturbs the
public peace_, including quieting loud parties, policing protests, responding to (and
often mediating) domestic and neighbourhood disputes, and intervening in conflicts
that anse between citizens. It is this role of the police that is most often the subject of
cnhc1sm and investigation.
• Crime Pre_vention and service requires collaborating with community partners to
prevent cnme and providing a wide range of services to the community, often as a
consequence of the 24-hour availability of the police.
A large portion of police work involves officers restoring order in situations of conflict
without resorting to the criminal law. 14 In carrying out these functions the police have
a broad discretion. This is discussed in Chapter 6.
These categories, however, may no longer accurately capture the diversity and
complexity of the police role in a highly technological, globalized community. The
police role has become much more multifaceted in recent years, often referred
to as diversification. Increasingly, police services are being asked to address nonlaw enforcement issues. This is partly a consequence of downloading , wherein the
police are required to fill gaps in service that are the mandated responsibility of
other agencies and organizations. For example, police services across the country
are spending an increasing portion of their time and resources responding to highrisk and vulnerable populations, including the mentally ill. When governments cut
the numbers of social workers and mental health workers, as well as funding for
shelter beds and for specialized facilities for the mentally ill, there is a direct impact
on the demands placed on the police resources .
In 2012, the chief of the London , Ontario, police service estimated that the police
response to the mentally ill cost $ 12 million, monies that the chief acknowledged
would have been better spent developing programs and services for this high-needs population.15 A study providing services, including policing, to persons who were homeless
and mentally ill in Toronto, Montreal, and Vancouver found the average cost to be
$50,000 per person per year. 16 The challenges surrounding the police and persons with
mental illness are discussed in Chapter 6.
In addition, most police services have developed an extensive network of collaborative partnerships with agencies and community organizations to address issues related
to crime and disorder. 17 This is also discussed in Chapter 6.
In considering the myriad roles of the police in Canadian society, the following questions can be posed: What does the community expect of the police? How do the police
view their role? How are the police used by governments to monitor and control groups
that are deemed to be threats to social stability?
THE IMPACT OF LEGISLATION AND COURT DECISIONS
ew laws and amendments to existing legislation can have a sharp impact on police
powers (discussed in Chapter 5), on the demands placed on police services, and on
how police services set, and attempt to achieve, their operational priorities. Literally
overnight, behaviour that was once criminal can become legal, as occurred with the
legalization of marijuana in 2018. On the other hand , the Anti-terrorism Act (S.C. 2001 ,
c. 41 ), enacted by Parliament following the terrorist attacks in the United States in
September 2001 , gave new powers to the police and created a new crime-terrorist
activity. This is an example of the social construction of crime, discussed in Chapter 1.
The police are also spending an increasing amount of time documenting their activities and fulfilling procedural requirements. The decision of the Supreme Court of
NEL
CHAPTER 4: The Structure and Roles of the Police
75
Canada in R. v. Stinchcombe ([ 1991] 3 SCR 326), which held that accused persons had
a constitutional right to full disclosure of materials related to the police investigation,
requires the police to prepare detailed reports, and case investigators may _spen~ as
much time on this "disclosure" as on the initial investigation. In a maior case mveshgation the disclosure package can run into the thousands of pages. The expectation is that
poli~e services have the capacity to fulfill these requirements. The role of legislation
and court decisions in defining the powers of the police is discussed in Chapter 5.
CORE POLICING IN THE EARLY 21 ST CENTURY
Core policing in the early 21st century is most accurately characterized as qualityof-life policing, which promotes healthy communities. It is the type of policing that
requires officers to have a multifaceted skill set and to respond to a variety of order
maintenance, service demands, and community expectations. Its other attributes
include the following:
Core policing
Often referred to as quality-of-life
policing; involves the police playing a
multifaceted role in the community,
which includes collaborative partnerships
with the community.
• developing and sustaining partnerships with the community
• taking initiatives to improve the quality of life in communities and neighborhoods
• providing reassurance to community residents and reducing the fear of crime
• conducting outreach to newcomer groups, Indigenous peoples, and vulnerable groups
• engaging in collaborative partnerships with agencies and organizations, including operating specialized patrol units
• increasing the use of statistical analysis to ensure that resources are deployed effectively
and efficiently 18
The extent to which any one police service is able to fulfill all of these functions will
depend upon the leadership of the organization, the resources that the police service is
provided by municipal and provincial governments, and the quality of the relationships
and partnerships that exist between the police and the community. The various roles of
the police are illustrated in Police File 4.1.
POLICING A DIVERSE SOCIETY
As noted in Chapter 3, a key feature of Canada is diversity. And this diversity is increasing.
Two-thirds of newcomers to Canada settle in the urban centres ofVancouver, Toronto, and
Montreal. Many of them have had negative experiences with, or hold less than favourable
attitudes toward, the police in their countries of origin. Urban centres are also attracting
increasing numbers of Indigenous persons from rural and remote areas. A study conducted in 2016 found that Toronto was the world's most diverse city. Fifty-one percent of
the city's population is foreign-born, and there are 230 nationalities among its residents. 19
This diversity has significant implications for police work. Section 15(1 ) of the
Charter of Rights and Freedoms guarantees equality rights: "Every individual is equal
before and under the law and has the right to the equal protection and equal benefit of
the law without discrimination and, in particular, without discrimination based on race,
national or ethnic origin , colour, religion, sex, age or mental or physical disability."
Section 3(e) of the Canadian Multicultural Act (R.S.C. 1985, c. 24 (4th Supp. )) states
that it is the policy of the Government of Canada to "ensure that all individuals receive
equal treatment and equal protection under the law, whi le respecting and valuing
their diversity."
The Canadian Human Rights Act (R.S.C. 1985, c. H-6) prohibits discrimination
on the grounds of "race, national or ethnic origin, colour, religion, age, sex, sexual
76
Part II: The Police
NEL
POLICE FILE 4.1
THE MULTIFACETED ROLE OF THE POLICE
What does each of the following images suggest about the role of the
police?
Police and RCMP officers force protesters from a road on
Burnaby Mountain as Kinder Morgan contractor vehicles
arrive at the site where a borehole is being drilled in
preparation for the Trans Mountain Pipeline expansion in
Burnaby, British Columbia, on November 21 , 2014.
RCMP officers arrest an asylum claimant and her
two daughters who crossed the border into Canada from
the United States on March 17, 2017, near Hemmingford,
Quebec.
G20 summit protesters clash with riot police in downtown
Toronto on June 26, 2010. A disciplinary hearing was held
for the most senior police officer charged in relation to mass
arrests made during the G20 summit.
NEL
A police officer is sprayed by parade goers during the
WorldPride Parade in Toronto, Ontario, on June 29, 2014.
The parade, which was the culmination of WorldPride
2014, attracted over a million people.
AToronto police officer helps a homeless man who has
been injured after falling into the curb on Yonge Street
outside the Toronto Eaton Centre on December 22, 2009.
The SPEAR (Special Patrol Enforcement and Awareness)
Team of the RCMP in Fort McMurray, Alberta
CHAPTER 4: The Structure and Roles of the Police
77
orientation, gender identity or expression, marital status, genetic characteristics, famil y
status, disability and conviction for an offence for which a pardon has been granted or
in respect of which a record suspension has been ordered" (s. 3(1)) . Many provinces,
including Ontario, British Columbia, Alberta, and Manitoba , have human rights codes
that mirror the federal human rights code and contain sections creating human rights
tribunals and proclaiming the right of residents to be free from discrimination. The
debate over racial profiling by the police, discussed in Chapter 5, is illustrative of the
human rights issues that surround policing a diverse community.
Police services must strive to reflect the diversity of the communities they police,
and officers must have the training to interact with a diverse population that may have
English or French as a second language. Diversity also creates opportunities for the
police to engage in innovative partnerships with the community and to collaborate
in addressing problems of crime and social disorder. Community policing provides a
framework for this and is discussed in Chapter 6.
A BRIEF HISTORY OF POLICING
The first full-time police force was created in London in 1829 by Sir Robert Peel
in response to increasing fear of crime and disorder associated with the Industrial
Revolution. Prior to this, policing was a community responsibility based on the notion
that every individual was responsible to their neighbours. Peel faced opposition from
the public and politicians who were concerned about the power that would be vested
in a formal police force, and when Peel finally won acceptance of his police plan for
London, he was denounced as a potential dictator.
Peel attempted to legitimize the new police force by arguing that the police would
serve the interests of all citizens, that the police would include the prevention of crime
as part of their mandate, and that the force's officers would be recruited from the
working class. In a determined effort to create a professional police force and to reduce
public suspicion and distrust of the police, he established high standards of recruitment
and training and selected constables from the community. Peel also introduced the
concept of community police stations. In contrast to the local watchmen who preceded
them, the new police were to be proactive rather than reactive and were to engage in
crime prevention activities.
Peel formulated several principles for law enforcement, which even today are viewed
as the basis for policing. See Police File 4.2.
THE EVOLUTION OF POLICING IN CANADA
In the early clays, before Canada existed as the country it is today, laws were enforced
on an informal basis by community residents. In Halifax, for example, tavern owners
were charged with maintaining order. For many years, policing remained closely tied
to local communities. As settlements grew and the demands of law and order increased,
however, this arrangement lost its effectiveness. The first police constables appeared on
the streets of Quebec City in the micl-1600s and in Upper Canada (now the province
of Ontario) in the early 1800s.
The early municipal police forces generally had a three-part mandate: ( 1) to police
conflicts bel:\veen ethnic groups, and behveen labourers and their employers; (2) to
maintain moral standards by enforcing laws against drunkenness, prostitution, and
gambling; and (3) to apprehend criminals. 20 The historical record indicates that early
municipal police forces were heavily influenced by politics and patronage.
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Part II: The Police
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POLICE FILE 4.2
THE PRINCIPLES OF SIR ROBERT PEEL
1. The basic mission of the police is to prevent crime
and disorder.
I
2. The ability of the police to perform their duties
depends upon public approval of their actions.
3. Police must secure the cooperation of the public in
voluntary observance of the law in order to secure
and maintain the respect of the public.
I
4. The degree of public cooperation with police diminishes proportionately to the necessity of the use of
physical force.
I
5. Police maintain public favour by constantly demonstrating absolute impartial service, not by catering -~
to public opinion.
j'
6. Police should use physical force only to the extent
necessary to ensure compliance with the law or
to restore order only after persuasion, advice and
warnings are insufficient.
Sir Robert Peel (1788-1850), creator of
the first modern police force and author of
Peel's principles
7. Police should maintain a relationship with the public
that is based on the fact that the police are the public and the public are the police.
8. Police should direct their actions toward their functions and not appear to usurp the powers of
the judiciary.
9. The test of police efficiency is the absence of crime and disorder.
QUESTIONS
1. Do you think that Peel's principles are as applicable today as they were in the early 1800s?
2. In your view, which of the principles may be difficult for police services to adhere to?
Source: C. Reith. 1956. A New Study of Police History. London, UK: Oliver and Boyd.
T North-West Mounted Police officers,
Dawson, Yukon, July 1900
NEL
Many of the jurisdictions that ultimately became provinces after Confederation
in 1867 originally had their own police forces. Most often, these were established in
response to the disorder associated with gold strikes (for example, in British Columbia
and Ontario). The earliest police force of this type was founded in 185 8 in British
Columbia {then a colony); that force continued to police the province until 1950, when
policing services were contracted out to the RCMP. The police forces that had been
established in Alberta, Saskatchewan, and Manitoba suffered from poor leadership and
a lack of qualified officers. Between 191 7 and 1950, the RCMP assumed provincial
policing responsibilities in all provinces except Ontario, Quebec, and parts of
Newfoundland and Labrador. To this day, those are the only three provinces
with provincial police services.
The orth-West Mounted Police {now the RCMP) was founded in 187 3 to
maintain law and order in, and to ensure the orderly settlement of, the previously unpoliced and sparsely settled orth-West Territories (in rough terms,
present-day Alberta and Saskatchewan). During its early yea rs, the force was
beset by internal difficulties and resented by both settlers and federal legislators. The historical record points to high rates of desertion, resignation, and
improper conduct, due in part to the harsh conditions of the frontier.
Attempts during the 1920s to phase out the force were driven by resistance
in many regions to its expansion into provincial policing. It was anticipated that
CHAPTER 4: The Structure and Roles of the Police
79
,8., 720,000 -
inces and municipalities was, in fact, more an accident of history than part of
[ 680,000 -
a master plan.
J!
1450
1440
1430 ;
e
g- 700,000 -
...
1420 ~
:,
1410 z
1 660,000 640,000
1400
2012
2013
2014
• Winnipeg population -
CANADIAN POLICING: A PROFILE
2015
2016
No. of police officers
•FIGURE 4.2
• Policing is the largest component of the criminal justice system and receives the
biggest slice of the funding pie (approximately 60 percent).
• The number of police officers (199 per 100,000 population) is lower than in
other international jurisdictions, including Scotland (337), England and Wales
(244), and the U.S. (238).
• The numbers of police officers in Canada have declined in recent yea rs, due to
retirements and cutbacks in funding.
• Diversity in police services is increasing, albeit slowly.
• The number of women police officers continues to increase, and they now represent
one in five officers.
• The number of civilians working in police services, particularly at the managerial
level, continues to increase. 22,23
Illustrative of the point about declining numbers of police officers is the situation
in Winnipeg, a community that has historically had one of highest crime rates in
Canada. 24 Despite increases in several categories of serious crime during 2015 to
2016-for example, homicide ( + 13 percent), attempted murder ( + 56 percent), and
sexual assault with a weapon ( + 78 percent)- the number of police officers in the
Winnipeg Police Service has been declining, and tl1e number of residents per police
officer increased. See Figures 4.2 and 4.3.
1460 I!!
:;
21
The following list provides a snapshot of policing today in Canada:
1470
740,000 -
as these areas became more populated, the responsibility for policing would
shift to local communities; for a variety of reasons, this did not happen. The
emergence of the RCMP as a national police force involved in policing prov-
Winnipeg Population versus Number of
Police Officers
Source: Adapted from Winnipeg Police Service. 2017. Annual
Report, 2016. Winnipeg:Author, p 3. http://www.winnipeg.ca/
police/AnnualReports/2016/201 6_wps_annual_report_english.
pdf. Reprinted by permission of the Winnipeg Police Service.
530 J!l 520 -
I~:=
.,
~
490 c:>
t 480 -
.Q
E
470 :,
z 460 450
2012
2013
2014
2015
2016
• FIGURE 4.3
Winnipeg Residents per Police Officer
Source: Adapted from Winnipeg Police Service. 2017. Annual
Report, 2016. Winnipeg: Author, p 3. http://www.winnipeg.
ca/police/Annua1Reports/2016/2016_wps_annual_report_
english.pdf. Reprinted by permission of the Winnipeg Police
Service.
THE STRUCTURE OF CONTEMPORARY
CANADIAN POLICING
Public policing in Canada is carried out at four levels: federal , provincial, municipal,
and Indigeno us. In addition, there are private security services and parapolice services.
The latter are generall y staffed by officers with special constable status. These include
the Canadian Pacific Railway Police Service and the Canadian ational Railway Police
Service (which carry out policing roles for their respective organizations), as well as
transit police forces, whic h provide security and protection for property and passengers
in major urban centres such as Montreal , Toronto, and Vancouver.
There are also other law enforcement and security agencies, including the Canada
Border Services Agency (CBSA), whose officers are armed; the Canadian Security
Intelligence Service (C SIS ); and the Communications Security Establishment (C SE),
which focuses on collecting foreign signals intelligence, protecting computer networks,
and providing assistance to federal law enforcement and security agencies. 25
The arrangements for delivering police services across Canada are quite complex. In
Ontario, for example, the London Police Service-an independent municipal police
service-is responsible for policing within the city boundaries, whi le tl1e London
detachment of the Ontario Provincial Police (OPP) has jurisdiction in the rural areas
80
Part II: The Police
NEL
outside the ~ity. The RCMP has its provincial headquarters in London and operates as
a federal police force m the areas policed by the London Police Service and the OPP.
The R~yal e_w_foundland Constabulary-a provincial police force-is responsible
for prov1dmg pohcmg services to three areas of Newfoundland and Labrador: St. John's,
Mount Pearl, and the surrounding communities referred to as ortheast Avalon; Corner
Brook; and Labrador West, which includes Labrador City, Wabush, and Churchill
Falls. The rest of the province is policed, under contract, by the RCMP.
In the Greater Vancouver Region, some municipalities are policed by municipal
police services, while others are policed under contract by the RCMP. Concerns about
the extent to which the municipal and RCMP detachments in the area effectively communicate with one another and address the challenges of organized crime and gang
violence, among other issues, have led to calls for a regional police service.
Five Canadian police services-the RCMP, the Toronto Police Service, the Ontario
Provincial Police (OPP), the SGrete du Quebec (SQ), and the Service de police de
la Ville de Montreal (SPVM)-account for just over 60 percent of all police officers
in Canada.
Canadian police services vary greatly in size and in terms of the areas for which they
are responsible. At one encl of the scale, there are three-officer RCMP detachments in
many remote northern communities, such as the community oflgloolik in unavut; at
the other, there are thousands of officers in the urban centres of Toronto and Montreal.
FEDERAL POLICE: THE ROYAL CANADIAN MOUNTED POLICE
Royal Canadian Mounted
Police Act
Federal legislation that provides the
framework for the operation of the
RCMP.
Contract policing
An arrangement whereby the RCMP
and provincial police forces provide
provincial and municipal policing
services.
NEL
L
The RCMP is organized into 15 divisions, plus RCMP headquarters in Ottawa. Each
division is headed by a commanding officer. The Royal Canadian Mounted Police Act
(R.S.C. 1985, c. R-10) provides the framework for the force's operations. As the federal
police force in all provinces and territories, the RCMP enforces most federal statutes
and the provisions of various legislative acts.
There are a number of features that distinguish the RCMP from other Canadian
police services. All RCMP recruits are trained at its training academy in Regina,
Saskatchewan. The officers are then deployed across the country in detachments.
The RCMP is a federal police force, yet about 60 percent of its personnel are involved
in contract policing; that is, they serve as provincial and municipal police officers under
agreements between the RCMP and the provinces/territories. ( ote again that Ontario
and Quebec have their own provincial police forces and that the Royal ewfoundland
Constabulary serves parts of ewfoundland and Labrador.) The RCMP also contracts
to provide provincial policing services in all jurisdictions except Quebec and Ontario.
This makes the RCMP a truly national police force.
Until recently, RCMP officers, unlike their municipal and provincial police counterparts, were not allowed to form a union. A decision of the Supreme Court of Canada
(Mounted Police Association of Ontario v. Canada, 2015 SCC 1) held that the ban
on RCMP officers having a union was unconstitutional and gave officers the right to
collective bargaining. As of late 2017, certification was pending for the ational Police
Federation, the new RCMP union.
The RCMP is involved in a broad range of policing activities, including federal
policing, contract policing at the provincial and municipal levels, and international
peacekeeping. One result of the broad range of policing activities of the RCMP is that
its resources and capacities are often overextended, and observers have questioned
whether the RCMP has sufficient resources to deliver policing services effectively on
all of these fronts. 26
CHAPTER 4: The Structure and Roles of the Police
81
There are also increasing concerns in municipalities policed under contract by the
RCMP about fiscal accountability: While municipal police services are subject to local
police boards and municipal councils, in those municipalities where the RCMP polices
under contract, there are no police boards, and the local mayor and council have no
mandate to oversee their work. Some observers thus argue that the RCMP is "in" but
not "of' the communities they police, and that it is often difficult to ensure that RCMP
detachments are responsive to the community's priorities and requirements.
PROVINCIAL POLICE
There are three provincial police forces in Canada: the Ontario Provincial Police
(OPP; www.opp.ca), the SGrete du Quebec (SQ; www.sq.gouv.qc.ca), and the Royal
ewfoundland Constabulary (RNC ; www.justice.gov.nl.ca/rnc). Provincial police
forces are responsible for policing rural areas and the areas outside municipalities and
cities. They enforce provincial laws as well as the Criminal Code. Some municipalities
in Ontario are policed under contract by the OPP. Outside Ontario and Quebec and
certain parts of ewfoundland and Labrador, the RCMP provides provincial policing
under contract with provincial governments. When the RCMP acts as a provincial
police force, it has full jurisdiction over the Criminal Code as well as provincial laws.
REGIONAL POLICE SERVICES
Regional police services have been a feature of policing in Canada for many years,
particularly in the eastern parts of the country.
Today, a number of regional police services, including the Peel Regional Police
(the largest regional police force in Canada) and the Halton Regional Police, provide
policing services to more than 50 percent of Ontarians. In Quebec, the Service de
police de la Ville de Montreal (SPVM) provides policing services to the city of Montreal
as well as several surrounding municipalities. There are only two regional police forces
west of Ontario: the Dakota Ojibway Police Service, in Manitoba, and the Lakeshore
Regional Police Service, an Indigenous police force that provides services to five First
ations in northern Alberta.
Proponents of regional policing contend that it is more effective at providing a full
range of policing services to communities and is less expensive than having a number
of independent municipal departments. Critics of regional policing argue that, with the
exception of Indigenous regional police services, this arrangement is too centralized
and does not offer the opportunity for effective community policing.
MUNICIPAL POLICE
As the name suggests, municipal police services have jurisdiction within a city's boundaries. Municipal police officers enforce the Criminal Code, provincial statutes, and
municipal bylaws, as well as certain federal statutes such as the Controlled Drugs and
Substances Act (S.C. 1996, c. 19). Most police work is performed by services operating
at this level.
A municipality can provide police services in one of three ways: by creating its own
independent police service; by joining with another municipality's existing police
force, which often means involving itself with a regional police force; or by contracting
with a provincial police force-the OPP in Ontario, the RCMP in the rest of Canada
(except Quebec).
Municipal police officers constitute the largest body of police personnel in the
country, if yo u include both police employed by municipal departments and those who
82
Part II: The Police
NEL
have been contracted through the RCMP or the OPP. There is no provision under
Qu~bec provincial law for the Surete du Quebec to contract out municipal policing
services. The Toronto Police Service has more than 5,000 officers; at the other end of
the spectrum, some remote communities are policed by detachments of only one or
two officers.
Municipalities with their own policing services generally assume the costs of those
services, which are sometimes underwritten by the provincial government. A notable
trend in Ontario has been a decline in the number of independent municipal police
services in favour of contracting with the OPP, although in recent years, a number of
municipalities have explored the potential of re-establishing municipal police services
in order to reduce costs.
INDIGENOUS POLICE
Indigenous peoples are becoming increasingly involved in the creation and control of
justice programs. It is in the area of policing that they have assumed the greatest control
over the delivery of justice services. One objective is to provide police services that are
more integrated into Indigenous communities.
T An officer with the Tyendinaga Police
Service in Ontario. Since 1992, governments
and Indigenous communities have negotiated
agreements for police services that best meet
their needs.
Within the framework of the federal First ations Policing Program (F PP),
established in 1992, the federal government and provincial/territorial governments
and Indigenous communities can negotiate agreements for police services that best
meet their needs. These communities have the option of developing an autonomous,
reserve-based police force or using Indigenous officers from the RCMP or the OPP
in Ontario. Funding for Indigenous police forces is split between the province and
the federal government. The activities of autonomous Indigenous police forces are
overseen by reserve-based police commissions or by the local band council. Indigenous
police forces often work closely with the OPP, the SQ, and the RCMP.
Among the larger autonomous Indigenous police forces-which are involved in
policing multiple reserve communities-are the Ontario First ations Constable
Program, the Six ations Police Service in Ontario, the Amerindian Police in Quebec ,
and the Dakota Ojibway Police Service in Manitoba. There are smaller Indigenous
police forces in other provinces. Indigenous police officers generally have full powers
to enforce on reserve lands the Criminal Code, federal and provincial statutes, and band
bylaws. The Supreme Court has held that Indigenous police constables in Ontario
have "territorial jurisdiction" that is not confined to the territorial boundaries of the
reserve (R. v. DeCorte, [2005] 1 SCR 13 3).
Officers in Indigenous police services may play an even more multifaceted role
than police officers in more populated areas of the country. Commenting on this,
and on the social issues facing man y Indigenous communities, the police chief
in an Indigenous police service in Quebec noted, "Being a police officer in the
north, you're the ambulance driver, the undertaker, the social worker.
You name it, we've done it. I've even been a Dr. Phil at times." 27 In
2015 in this chief's community of 650 residents, officers responded to
j' 64 suicide attempts in the previous 12 months, a rate of about one attempt
en
::c
"' per every 12 residents .
I!?
Canadian police scholars have argued that the F PP, under which
w
a:
Indigenous
police services operate, was "set up to fail." 28 These police services
a..
~
have been challenged by a lack of funding, often struggle to respond effecC
z
tively to the high rates of crime and disorder that exist in some Indigenous
c.,
w
::c
communities, and often do not provide culturally appropriate services.
>-
i
c(
c(
NEL
CHAPTER 4: The Structure and Roles of the Police
83
POLICE ORGANIZATIONS
The major urban police services have similar divisions, or sections. These include
the following:
• Operational patrol: Patrol division, dog or canine unit, identification squad, traffic,
reserve/auxiliary
• Investigative: General investigation, major crimes, special crimes (e.g., sexual offences)
• Support services: Information , report, or filing; communications centre; victim services;
community services/crime prevention
• Administrative: Finance and payroll, property office
• Human resources: Staff development, recruiting, training
• Research and planning: Strategic planning, crime analysis, audit
Canadian police services, like their counterparts worldwide, have a rank structure
that reflects their paramilitary organization. Most police services have a chief constable, one or more deputy chief constables, superintendents, and inspectors (often
referred to as commissioned officers, although they are not actually commissioned),
and non-commissioned officers, including staff sergeants, sergeants, corporals, detectives, and constables.
PRIVATE SECURITY SERVICES
Recent yea rs have seen exponential growth in private security, which is now providing
services previously performed by provincial and municipal police services. There are
two main types of private security: security firms that sell their services to businesses,
industries, private residences, and neighbourhoods; and alternatively, companies that
employ their own in-house security officers. Across Canada, a number of communities
have hired private security firms to provide 24-hour security patrols.
Generally, private security personnel have no more legal authority than ordinary citizens to enforce the law or protect property. However, private security officers can arrest
and detain people who commit crimes on private property. Recent court cases suggest
that private security personnel must adhere to the provisions in the Charter of Rights
and Freedoms only when making an arrest.
Private security officers outnumber police officers by four to one in Canada and
are engaged in a wide range of activities, including crowd control, protecting businesses and property (including shopping malls and college and university campuses),
and conducting investigations for individuals and businesses . In some venues, such
as sporting events and concerts, private security officers and police officers may work
in collaboration.
In recent yea rs, the total number of police officers in Canada has declined,
wh ile the number of priva te security officers has continued to increase. For
example, private security licences issued in British Columbia increased from
7,743 to 21,878 between 2004 and 2015 (+ 182.5 percent). During that time
period, the number of police officers in the province increased at a much slower
rate, from 7,072 to 8,754 ( + 23.8 percent). 29 Although historically characterized
by a degree of distrust, the relationships between the public police and private
security in Canada seem to be improving. 30
T One of the many duties undertaken by
private security officers includes working
sporting events, such as this Toronto Raptors
game at the Air Canada Centre in Toronto.
There are many instances in which public police work in collaboration with
private security. At the West Edmonton Mall, for example, there is both private
84
Part II: The Police
NEL
security a~d a police sub-station, and in Waterloo, Ontario, the police work closely with
bank and msurance company investigators to share information on cases. It is likely that
there will be increasing integration of public police and private security in the future. 31
The rapid growth of the private security industry has led to concerns with the transformation of private security officers into parapolice through the extension of their
activities beyond loss prevention and the protection of property to encompass order
maintenance and enforcement. 32 •33 Other observers have expressed the concern that
although public police are accountable to oversight commissions and- in the case of
municipal and provincial police forces-to elected community officials, no similar systems of governance are in place for private security officers. 34
POLICE PEACEKEEPING
RCMP officers, along with their provincial and municipal counterparts, are involved
in a variety of international peacekeeping activities. This has included Sierra Leone,
Afghanistan, Sudan, and Haiti. The officers function mainly as technical advisers and
instruct local police forces in new policing strategies.
There has been considerable debate around the effectiveness of these deployments,
with some observers arguing that the impact of the officers is minimal and that the missions are mounted in order to "show the flag" -that is, to raise the profile of the Canadian
government overseas. Among the difficulties that have been identified are the lack of
pre-deployment training for officers being sent on peacekeeping missions and the fact
that Canadian officers are often part of a multinational force of police officers, among
whom there is wide disparity in both skills and level of professionalism. 35 The deployment of police officers overseas is one example where police officers may be being used
for political purposes.
THE POLICE RESPONSE
The police respond to a wide variety of demands and situations-many unrelated to
crime and to the maintenance of public order-and carry out their duties in settings
ranging from megacities (such as Montreal, Toronto, and Vancouver) to rural communities and hamlets in the remote North. The rates of crime and the types of calls to which
the police respond depend on the specific community environment in which police
officers carry out their work. Some communities present more demands and challenges
than others. 36 The rates of violent crime in Canada are highest in remote, northern
Indigenous and Inuit communities, areas where there are the fewest resources. 37
Citizen calls for service received by the Waterloo Regional Police Service are
presented in Police File 4.3.
More serious calls for service may require patrol officers to remain at the scene for
longer periods of time. Although priority 1 calls (the most serious) are often less than 10
percent of the calls received by a police service, the time spent by officers on-scene and
in the subsequent investigation may be very time- and resource-intensive.
The complexity of crime has also continued to increase. Many forms of criminal
activity are highly sophisticated and involve international criminal syndicates that
require costly and time-consuming investigations. These syndicates engage in such
transnational criminal activities as human trafficking, money laundering, and drug
smuggling. The emergence of cybercrime has also challenged police services to develop
new capacities for surveillance.
NEL
CHAPTER 4: The Structure and Roles of the Police
85
POLICE FILE 4.3
CITIZEN CALLS FOR SERVICE, WATERLOO REGIONAL
POLICE SERVICE, 2016
2016 Top Ten Citizen-Generated calls
Frequency
New call Every ...
1. Compassionate to locate
11,738
45 minutes
2. Bylaw complaint
9,077
58 minutes
3. Unwanted person
6,838
1 hour, 17 minutes
4. Theft under $5,000
6,009
1 hour, 28 minutes
5. Domestic dispute
5,712
1 hour, 32 minutes
6. Motor vehicle collision/property damage
5,010
1 hour, 45 minutes
7. Driving complaint
4,851
1 hour, 49 minutes
8. Injured/sick person
3,878
2 hours, 16 minutes
9. Dispute
3,496
2 hours, 31 minutes
10. Alarm
3,470
2 hours, 32 minutes
'I
source: Waterloo Regional Police Service. 2017. Waterloo Regional Police Service Annual Report, 2016. http://www
.atyourservice2016.ca/citizen-calls.html. Reprinted with permission of the Waterloo Regional Police Service.
THE RECRUITMENT AND TRAINING
OF POLICE OFFICERS
POLICE RECRUITMENT
The increasing complexity of the police role requires that only highly qualified persons
are recruited and trained. Even with the cutbacks in policing budgets, police services
are competing for qualified candidates.
People who are interested in a career in policing must have both basic qualifications
and preferred qualifications. The basic qualifications include Canadian citizenship
(although some departments consider permanent residents), a minimum age of 19 (the
average age of police recruits in many cleparh11ents is over 25 ), physical fitness, and a
grade 12 education. Also, the applicant cannot have any prior criminal convictions or
pending charges, and must exhibit common sense and good judgment.
Preferred qualifications-which are highly prized by police services-include any
(or ideally, a combination o~ the following: knowledge of a second language or· culture, related volunteer experience, postsecondary education, and work/life experience.
Ontario has stanclarclizecl the criteria for assessing prospective applicants through its
Constable Selection System, which is used by most of the province's police services.
Prospective recruits fi le one application, which is then vetted through this system. This
system has clone away with multiple applications to several police services and consequent dup lication of the assessment effort.
A challenge is to develop measures to assess the validity of the criteria used to select
and train police recruits, and to determine whether the attributes of police recruits have
an impact on their performance during their policing careers. 38 It has been noted that
police recruits are not "blank slates" when they arrive at the tra ining academy; they
bring with them attitudes and beliefs that may influence their views of persons and
situations as police officers. A key issue is how these are either enhanced or modified by
their experience in the training academy. 39 While all major police services in Canada
86
Part II: The Police
Basic qualifications
(for police candidates)
The minimum requirements for candidates applying for employment in
policing.
Preferred qualifications
(for police candidates)
Requirements that increase the
competitiveness of applicants seeking
employment in policing.
NEL
~dminister psyc hological tests to applicants, the application process
111 Quebec includes testing designed to measure the applicant's
emotional intelligence and to determine whether the person will
encounter problems if hired in the police service.
Senior Offlcers - 10% female
Senior officer status, normally at the rank
of lieutenant or higher; for example, chiefs,
deputy chiefs, superintendents, inspectors,
lieutenants, and equivalents.
INCREASING OFFICER DIVERSITY
IN POLICE SERVICES
Non-commissioned Officers -17% female
Between the ranks of constable and
lieutenant, such as staff-sergeants,
sergeants, detective-sergeants, corporals,
and equivalents.
Canadian police services are making efforts to increase the diversity in their ranks. There has been, for example, a steady increase
in the number of women officers, although in 2016, women still
comprised only 21 percent of all sworn police officers. There has
also been a significant increase nationally in the number of women
at the higher ranks of police services: 13 percent in 2016, as compared to 6 percent in 2006. 40 See Figure 4.4, which outlines tl1e
distribution of women in police officer ranks in Canada. In 2016,
a graduating recruit class in the Toronto Police Service was 48 percent women, one in three of the recruits were visible minorities,
A FIGURE 4.4
and among them , dozens of languages were spoken. 41
Over the past decade, police recruiting has undergone signifiWomen in Police Officer Ranks in Canada, 2014
cant changes because of the increasing pressure on police serSource: Manitoba Status of Women. 2014. Women and Policing in Canada: A
vices to reflect the gender and cultural and ethnic diversity of the
Status Brief and Discussion Paper. Winnipeg: Author, p. 2. https://www.gov
communities they police .
.mb.ca/msw/publications/pdf/2014_women_in_policing_brief.pdf. Reprinted
by permission of Copyright, Manitoba Government.
Many police services have developed special initiatives and programs to attract qualified visible minority and Indigenous recruits.
The OPP, for example, operates PEACE (Police Ethnic and Cultural Exchange),
wherein visible minority students participate in a police-sponsored summer employment program. Also, tl1e Edmonton Police Service operates a mentorship academy to
encourage women, Indigenous people, and members of visible minority and diverse
communities to apply to the force. The 12-session academy is taught by members of the
police service and includes such topics as leadership, interpersonal skills, and public
speaking. 42
Anotl1er diversity initiative has been the development of uniforms that include a
hi jab (a scarf that covers tl1e head and chest) that would be worn by women Muslim
police officers.
Although tl1e number of women police officers and visibl e minority officers in
Canadian police services has gradually increased, both groups are underrepresented
PERSPECTIVE
AWoman Staff Sergeant
I think everyone really appreciates it when they start seeing diversity on their squads
just because of the diversity of the calls we get. Once it's reflected in your teammates,
it just means you have more experience and knowledge to draw from . Whatever kind
of background you come from, whether you're female or you're from a racial minority
or any of those kinds of diversities, people really appreciate it. It makes the job a lot
easier when you have someone with different skill sets, whether you're more sensitive
to certain calls and you can find yourself handling them and just build a rapport better
with certain communities, it's just great, awesome to have.
Source: C. Oobie. 2014, August 14. "Women: AGrowing Force in the City," New Westminster Record. http://www.newwestrecord
.ca/newslwomen-a-gmwing-force-in-the-city-1.1313416. Reprinted by permission of the publisher.
NEL
CHAPTER 4: The Structure and Roles of the Police
87
• FIGURE 4.5
....
• % Police diversity • % Population diversity
60%
How Well Police Services Reflect
Their Communities
40%
Source: J. Marcoux, K. Nicholson, V. -L. Kubinec,
and H. Moore. 2016, July 14. "Police Diversity Fails
to Keep Pace with Canadian Populations," CBC
News. http://www.cbc.ca/news/canada/police
-diversity-canada-1.3677952. Reprinted by
20%
permission of CBC.
0%
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in police services, particularly at the higher ranks. A study conducted in 2016 found
that only in Halifax was the diversity in the police service reflective of that in the community: 11.6 percent of the community is non-white, while 12.1 percent of the officers
are either Indigenous or visible minorities:B In Toronto, where just over 50 percent
of community residents are non-white, only 25 percent of the police service is. The
underrepresentation of Indigenous and minority group persons is most pronounced
in Quebec: Montreal is four times more diverse than the SPVM, and in Sherbrooke,
Quebec City, and Gatineau, fewer than 1 percent of police officers are Indigenous or
from a minority group. 44 See Figure 4.5.
Some observers have argued that, while increasing the diversity of police services
is important, it is equally important to focus on changing the culture of the police.
Sanely Hudson, the co-founder of Black Lives Matter in Toronto, states, "I don't know
whether or not more racializecl faces on the police force is going to [bring about
change]. __ . There has to be a real commitment to changing policy, to changing
structure, and to changing the institution as a whole, otherwise these issues don't
really get solved." 45
POLICE TRAINING
Just as important as recruiting qualified people to become police officers is training
them well. There are several different models of police training in Canada. Municipal
police recruits may be trained "in house," at a residential or non-residential training
academy, or at a combination of both . Recruits in the Calgary Police Service (CPS),
for example, are trained at the Chief Crowfoot Learning Centre, which is operated
by the CPS, while municipal officers in Ontario receive a portion of their training
in-house prior to being sent to the Ontario Police College in Alymer, Ontario. In British
Columbia, recruits in municipal police services are sent to the Justice Institute of British
Columbia, a non-residential facility, where they complete a three-block training course.
Blocks I and III are in the academy, and Block II is completed in the field under the
supervision of a field training officer in their home department
88
Part II: The Police
NEL
In contrast, RCMP cadets are sent to the RCMP training depot in Regina for six
mo~ths of ~ainin~ p~ior to being sent to a detachment for six months of field training.
Unlike th~1r prov'.ncial and municipal counterparts, the cadets are not hired by the
RCMP pnor to bemg sent to training and are generally offered employment as a regular
member after successfully completing training at the depot.
Police recruits generally receive instruction in the law, community relations, methods
of patrol and investigation, and firearms handling. They are also provided with driver
training and physical training. Having completed this training, the recruits are usually
assigned to general patrol duties for three to five years. Thereafter, they are el igible to
apply to specialty units.
Besides providing knowledge and sk ills, training academies provide a mechanism
for socializing new recruits into the occupation of policing. Far too little attention has
been paid by police scholars to the experiences of police recruits in training programs
as they are transformed into police constables, and to how these experiences shape their
attitudes, expectations, and behaviour.
Most police recruits are motivated, at least initially, by a desire to help people
and serve the community. The training experience can have a strong impact on
this, however. Research sh1dies have found that, for many recruits, the police academy
experience makes them more cynical, more suspicious of people, and, generally, more
vigilant. 46 The extent to which recruits exhibit these attitudinal and behavioural traits,
however, depends upon the personalities and values of the individual.
There are attributes of the police academy that do not fit well with the principles of
community policing, including a hierarchical, paramilitary structure that encourages
an "us versus them" mentality, deference to authority, and the development of strong
bonds and in-group loyalty among recruits. The extent to which these features of the
police academy experience have hindered the implementation of community policing
has yet to be researched in Canada .47
Despite the critical role that recruit training plays in policing careers, very little is
known abo ut how new recruits feel about the training they receive. As well , little is
known about the relevance and impact of academy training once recruits are assigned
to operational patrol.
THE FIELD TRAINING EXPERIENCE
Operational field
training
Instructing the recruit how to apply
principles from the training academy in
the community.
NEL
During tl1is second component of the training/learning process, known as operational
field training, the recruit learns to apply the basic principles taught at the training
centre. Under tl1e guidance and assistance of a field training officer (FTO), the recruit
is exposed to a wide variety of general police work.
During this critical phase, the specially trained senior officer (often referred to as the
field trainer or mentor) makes sure tl1at the recruit is able to meet the demands and
challenges of police work.
Police services are paying increasing attention to ensuring continuity between the
training a recruit receives in the academy and tl1e supervision provided once the new
recruit is involved in operational policing. FTOs play a significant role in th e training
process and have a strong influence on the attitude and policing style that the new
recruit develops. A key objective of the FTO is to enhance the skills and knowledge the
recru it has gained at the academy in a way that lessens the "disconnect" between the
training academy and the street. This will reduce the likel ihood that the new officer
will become cynical and discard the skill sets and attitudes learned in recruit training.
As the former director of a police training academy stated, "Some outstanding booksmart recruits struggle on the street, and others that struggle in the academy do well
CHAPTER 4: The Structure and Roles of the Police
89
on the street. Until you actually get new officers out on the street, it's difficult to
tell how they are going do to, how they are going to interact and handle encounter
situations." 48
THE POLICE OCCUPATION
Largely as a consequence of the unique and multifaceted role that the police play in
society, there are some distinctive features of the occupation.
THE WORKING PERSONALITY OF POLICE OFFICERS
The various pressures and demands placed on police officers contribute to what
researchers have called the working person ality of the police. This concept is used to
explain how the police view their role and the world around them. It was first identified
and defined by the criminologist Jerome Skolnick, who wrote, "The police, as a result
of the combined features of their social situation, tend to develop ways oflooking at the
world distinctive to themselves, cognitive lenses through which to see situations and
events." 49
Among the features of the working personality are a preoccupation with danger,
excessive suspiciousness of people and activities, a protective cynicism, and difficulties exercising authority in a manner that balances the rights of citizens with the need
to maintain order. It is argued that, as a consequence of these personality attributes,
many police officers tend to view policing as a career and a way of life, rather than
merely a nine-to-five job; value secrecy and practise a code of silence to protect fellow
officers; and exhibit strong in-group solidarity-often referred to as the blue wallowing to job-related stresses, shift work, and an "us versus them" division between
police and non-police. As well , police officers may exhibit attitudes, often referred to
as the blue light syndrome, that emphasize the high-risk, high-action component of
Working personality
of the police
A set of attitudinal and behavioural
attributes that develops as a consequence
of the unique role and activities of police
officers.
police work. 50
In the over 50 years since Skolnick first proposed the notion of a working personality,
there have been many changes in the activities and strategies of police officers, as well
as in the diversity of police officers themselves. One of the most significant developments has been the emergence of community policing, a model of policing centred on
police-community partnerships that bring officers into close contact with community
residents in a wide range of crime prevention and response activities. Various community policing strategies can succeed in reducing the distance (and distrust) between the
police and the communities they serve.
These and other changes in the activities of the police have led to the suggestion that
the "us [police] versus them [public]" dichotomy is much too general and that it fails
to account for the wide variety of relationships that exist between the public and the
police, as well as the differences among police officers themselves with respect to how
the police role is carried out. 51 , 52
That a police subculhire exists has many positive implications. For example, it
encourages camaraderie and trust among police officers, helps individual officers cope
with the more stressful aspects of police work, and is a source of general support. A more
negative view of the police subculture is warranted, however, if and when the group
solidarity it generates comes at the expense of positive police-community relations, an
openness to new strategies and models of policing, and/or a cover-up of police wrongdoing. The blue wall of silence may also be an obstacle to addressing the health and
wellness of police officers, discussed below. 53
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Part II: The Police
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CHALLENGES IN POLICE WORK
Pol'.ce officers o~en encounter challenges related to their profession that may have
an impact on their health and well-being. Stressors include shiftwork which can lead
to fatigue; being an Indigenous, visible/cultural minority, or LGBTQ officer; and
attempting to maintain a work/life balance. 54, 55 , 56 In addition, police officers posted to
rural and remote communities may be at particular risk of fatigue, given the absence of
support resources and the need to be continually on duty.
The challenges of police work are illustrated by the prevalence of occupational stress
injuries and the issues surrounding the sexual harassment of women officers.
OCCUPATIONAL STRESS INJURIES
There is an increasing focus on the health and wellness of the police and other first
Occupational stress
injuries
Physical and/or mental conditions in
police officers caused by their organizational and operational experiences on
the job.
responders and the extent to which these personnel suffer from occupational stress
in juries. These are injuries that may be phys ical and/or mental and are a consequence
of their organizational and operationa l experiences on the job.
Although police work can be satisfying and challenging, it can also be stressful. The
effects of stress experienced by police officers range from minor an noya nces (which can
be managed) to alcohol or drug addiction and suicide .57 , 58 Occupational stress injuries
can affect the officer, his or her family, and the officer's performance on the job. Studies
have also found that officers with high stress levels are more susceptible to engaging in
misconduct. 59
A study of work life and employee well-being among a large sample ( = 4,500) of
Canadian police officers found that 75 percent of the officers worked more than 45 hours
per week and 64 percent were not able to get everything clone during work hours and
took home work to complete outside of their regular hours on evenings and weekencls. 60
An officer in Ontario spoke about the impact of his mental health issues on his fam ily:
My family took a lot of the brunt of my anger and of my sicknesses .... Any of my
anger or discomfort, I would yell at them, I would blame my wife for everything . ...
The mental stress I had downloaded on my family. They had to carry me and they
took the brunt of all my behaviors [a t home ) and then I would go to work, I put the
uniform on and put on a show and made it look like I was okay and continue and
make sure no one kn ew. 61
It has also been found that the police organization itself may be the greater source
of stress for officers. 62 Poor leadership, a lack of transparency in the promotion process,
Post-traumatic stress
disorder (PTSD)
An extreme form of critical incident stress
that includes nightmares, hypervigilance,
intrusive thoughts, and other forms of
psychological distress.
NEL
and a perceived lack of support from supervising officers may exacerbate the stressors in
a police officer's operational environment. 63
In Canada, police officers in remote areas, assigned to small detachments, may experience high stress levels because of the challenging environments in which they work.
Remote and rural communities often have much higher rates of crime-especially violent
crime-than urban centres. Policing in these h igh-demand environments, where backup
may not be readily available, can take a toll on officers. In recognition of this, officers are
generally posted to these isolated locations for no more than two or three years.
A study ( = 4,957) of U.S. and Canadian police officers found that just over
40 percent of the officers suffered from at least one sleep disorder. 6-+ The results of
a national study of Canadian first responders are presented in Resea rch File 4.1.
Officers who are involved in critical incidents, such as a shooting, or who are exposed
to extreme violence, individual suffering, and death may develop post-traumatic stress
disorder (PTSD ), an extreme form of critical incident stress that includes nightmares,
hypervigilance, intrusive thoughts, and other forms of psychological distress. 65
CHAPTER 4: The Structure and Roles of the Police
91
RESEARCH FILE 4.1
MENTAL DISORDERS AMONG CANADIAN FIRST RESPONDERS
In the first study of its kind, a 201 B nationwide online survey (N = 5,813)
designed to assess the health and wellness of first respondents was
• The symptoms of occupational stress injuries ~ere more prevalent
among first responders with more years of service and more expo-
administered to municipal, provincial, and RCMP officers, paramedics,
911 dispatchers, correctional workers, and firefighters. The study found
the following:
sure to traumatic events.
• Municipal and provincial police officers have more access to support services than their RCMP counterparts, who are tr_ansferred
• Among respondents, 44 _5 percent reported symptoms consistent
with one or more mental disorders, as compared to 1O percent of
frequently_ and may work _in rural and northern communities where
such services are not available.
the general population.
• The responses of women first responders were more likely than men
to indicate mental disorder, particularly among women firefighters.
Source: R.N. Carleton, T.O. Afifi, s. Turner, T. Taillieu, s. Duranceau, D.M. LeBouthillier, • • •
G.J.G. Asmundson. 2011. "Mental Disorder Symptoms among Public Safety Personnel
in Canada," The Ganadian Journal of Psychiatry, 1-11. Advance online publication.
doi:10.1177/0706743717723825
Traumatic events such as homicides, suicides, the deaths of children, and multi·
victim accidents can take a toll on officers and lead to burnout. 66 Th ese expenences
may be compounded by shiftwork, which results in officers working all hours of the day
and night with a significant impact on sleep patterns. The experience of one Ontario
Provincial Police officer is described in Police File 4.4.
A study of the health and wellness of officers in a large urban police service found
that the officers employed a variety of coping strategies to deal with the stressors in
their work. These included constructive self-help coping strategies, such as speaking
with loved ones, exercising, and bringing humour to otherwise difficult situations;
destructive self-help coping strategies, including excessive use of alcohol; and seeking
professional help. 67 Although the economic costs associated with PTSD, including
short- and long-term health costs, the costs of treatment, and the impact on police
officers and their families, have not been calculated in Canada, they can be presumed
to be substantial. 68
Canadian police services have developed a range of in-house programs and collaborations with mental health professionals to address occupational stress injuries of officers.
POLICE FILE 4.4
OFFICER "DAVID"
Officer David has been with the OPP tor more than 20 years, but one
event overshadows his career. Years ago, he shot and killed a man
who attempted to murder two fellow officers. The incident left him with
nightmares and hypervigilance symptoms. He also had to face the
internal and external investigations that accompany such incidents, as
well as a civil lawsuit by the deceased's family. Fortunately, he had a
supportive detachment commander who made the necessary arrangements for him and his wife to see the OPP Staff Psychologist, afforded
him time away from work, and encouraged him to file a WSIB claim.
Soon after the shooting, Officer David was referred to a community
psychologist who diagnosed him with post-traumatic stress disorder.
However, his treatment was short-lived, and he once again found
himself back at work in "suck it up" mode. Memories of the shooting
and uncontrollable bouts of crying continued to plague him. But this
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Part II: The Police
time, he responded by avoiding his family, burying himself in work, and
drinking alcohol to numb the pain and sleep at night. After years of
struggling for control, he became suicidal and was hospitalized. He went
on a long-term leave from work, obtained WSIB benefits, and underwent
treatment. Like others in his position who have been steeped in the
police culture, he was embarrassed to find himself suffering from mental
illness. While many of those we spoke to expressed frustration with the
return-to-work process and the lack of meaningful work available to
individuals recovering from operational stress injury, Officer David was
able to return to work successfully, in a rewarding position.
Source: A. Marin. 2012. In the Line of Duty. Toronto: Ombudsman of Ontario, p. 19.
https://www.ombudsman.on.ca/Files/sitemedia/Documents/lnvestigations/SORT%20
Investigations/OPP-final-EN.pd!. Reprinted by permission of the Office of the
Ombudsman of Ontario.
NEL
These include critical incident stress intervention teams and peer-support programs
which are based on the principle that officers who have experienced similar challenge;
an~! ove_rc~me '.11ental health issues are best suited to support their colleagues who are
facmg similar s1tuations_69
One challenge to the effectiveness of these initiatives is that officers often feel
there is stigma associated with seeking help. As one officer stated, "There is still ve
much an attitude of 'If you can't handle it you should quit."' 70 An Ontario Provinci~
Police officer recalled how, historically, the culture of policing deterred officers from
seeking assistance:
When I started in policing over 32 yea rs ago, the profession had a culture that
often viewed any expression of emotional or psychological pain as a weakness.
Cops were to be tough. If they dared go to a supervisor or colleague with such
a problem, they may have been told to "suck it up." Sadly, an environment of a
reluctance to self-identify was alive and well. Thankfully, that's no longer the case.
We have learned much about posttraumatic stress disorder (PTSD) during the last
three decades and policing has come to terms with how it affects our profession. 71
The development and expansion of health and wellness programs in police services
have served to change the attitudes towards occupational stress injuries. Evidence that
the stigma associated with seeking help may be decreasing is reflected in the doubling
of the number of officers in the Toronto Police Service seeking assistance for psychological issues during the years 2014 to 2016. 72
In recognition of the pervasiveness of PTSD in police and other first responders,
a number of provinces have passed legislation designating it as an occupational
disease in order to facilitate access to treatment services as a component of benefit
plans. 73
THE EXPERIENCE OF WOMEN POLICE OFFICERS
A major source of stress for women police officers may be sexual harassment and
discrimination in the workplace.74 This often involves unwanted sexual advances
by another officer and/or obscene comments, which often thrive due to there being
an "old boys' club" in the police service. 75 Police mothers in particular may face
challenges of negative workplace responses to their pregnancy and in re-establishing
their credibility upon returning to work. 76
In 2017, a class action suit for more than $165 million was launched by past and
present members of the Waterloo Regional Police Service, alleging unwanted sexual
advances, career sabotage, and personal attacks. 77
In 2016, the RCMP settled a class action harassment suit brought by over 500 former
and current women RCMP officers who alleged they had been the subject of harassment while on the job. It is estimated that payments to the former and current officers
could exceed $100 million. 78 The suit had alleged that women experienced genderbased discrimination and harassment, including name-calling, sexist pranks, and verbal
propositions for sexual favours .
A 2017 report by the Civilian Review and Complaints Commission (CRCC) for
the RCMP found that bullying and harassment of both male and women officers,
including intimidation of officers by their supervisors, continued to be serious issues
within the RCMP_ 79
Women officers may have little faith in the police organization to deal appropriately
with complaints ofharassment. 80 Women may also be hesitant to report being harassed
due to fears of career suicide-that is, the fear they will be ostracized and shunned in
the department and have limited opportunities for career advancement. 81
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CHAPTER 4: The Structure and Roles of the Police
93
POLICE FILE 4.5
THE INDIVIDUAL EXPERIENCES OF WOMEN POLICE OFFICERS
SERGEANT, BC MUNICIPAL POLICE SERVICE
1have never been made to feel any different as a police
officer because I'm a female in this department. Yes, there
may have been a boys' club mentality back in the day, but I
have never experienced it. I've had nothing but positive experiences here. [On] my first patrol watch, I was the only female
on that watch, and again they made me feel totally welcome,
totally supported. In terms of if I was treated any differently
by anybody, I think I would see more of the sensitive calls th at
were dispatched. Perhaps, if somebody came in and th ey
wanted to speak with a female, I was the default female. · · ·
Right off the bat it gave me a lot of experience dealing with
sensitive calls and victims who have variant levels of distress
that maybe they may not be overly comfortable talking about.
In terms of the guys on my squad, they were fantastic,
they were great, they welcomed me. I always felt like they
had my back, always, and not just because I was a female
but because I was part of the squad .a
CONSTABLE, TORONTO POLICE SERVICE
AToronto police officer says she suffered "repeated and systematic" sexual harassment by her supervisors in a "poisoned
work environment" that eventually pushed her to take medical
leave, the Human Rights Tribunal of Ontario has heard.
Heather McWilliam alleges she was "humiliated and
segregated" over nearly eight years as a constable at 23
Division, including being called "degrading names" such as
"c--t, bitch and dyke. "
McWilliam, a former RCMP officer, says a superior
officer once made a sexual joke about wanting her to
..
"ride his horse." Const. Heather McW1ll1am says she heard
sexual or sexist comments every single shift during her
seven years in the Toronto Police Service.
There were other jokes about masturbation and oral
sex, McWilliam alleges, and she says a superior officer
once passed around photos, taken from Facebook, of her
and other female officers in bikinis. [ ... ]
McWilliam 's lawyer, Kate Hughes, says the application
is not about a few "bad apples" but rather a "poisoned
workplace environment" within Toronto police that condones and accepts harassment against female officers.
"They are the object of jokes, the object of sexual
objectification, talking about how they look, and the size of
women's breasts," Hughes said on Thursday.
Female officers who come forward with complaints are
considered "rats" and not "team players," Hughes said,
which is particularly concerning for police officers who rely
on each other for protection on the job.
"They may have to save your life one day," Hughes told
the tribunal.
Filing complaints is a "career ender" for female officers,
Hughes argued, and many who do are pushed to settle outside court, which keeps the allegations private.b
• C. Dobie. 2014, August 14. "Women : A Growing Force in the City," New Westminster
Record. http://www.newwestrecord.ca/news/women-a-growing-force-in-thecity-1 .1313416. Reprinted by permission of the publisher
b Trevor Dunn, 2016. "Toronto police officer alleges 'repeated and systemic' sexual
harassment on the job," CBC News, November 3, http://www.cbc.ca/news/canada/
toronto/toronto-police-officer-a\leges-repeated-and-systemic-sexual-harassmenton-the-job-1.3835390. Reprinted by permission of CBC.
As on e offi cer told th e C CRC inquiry:
I am afraid that I will be unjustly disciplined by being suspended witl1out pay, of being
charged witli a Code of Conduct violation, or being disciplined by the Force and losing
my employment and my career-all because I came fo rwa rd witl1 what [ have endured. 82
Among tile conclusions of th e C CRC report was th at tl1 e RCMP had resisted m aking
tl1e n ecessary orga ni za tional reform s to address th e iss ues surroundin g harass m ent in
tile workpl ace .
Th e exte nt to whi ch ha rass m ent is an iss u e in police services m ay depe nd in
large m easure on th e c ulture of th e individual p olice service, whi ch , in turn , is
highl y influ en ced by th e seni or leade rship. This is re fl ected in th e exp eri en ces of
th e wome n offi ce rs presented in Poli ce F il e 4. 5.
SUMMARY
The discussion in this chapter has examined tl1e structure and rol es of th e police in
C an ada. M ode rn policing developed in E ngland in th e ea rl y 1800s, and a number of
94
Part II: The Police
NEL
key principles of policing were identified that provide the basis for policing in contemporary times. Community self-policing in early Canada gradually gave way to organized
police services, and today policing is carried out at the federal, provincial, municipal,
and Indigenous levels.
It was noted that there has been a pluralization of policing, wherein the public and
private police share responsibility for the safety and security of communities. The challenges of policing in a democratic society, which centre on maintaining order while
ensuring individual rights, were discussed as was the police role in contemporary society
I
and the efforts of police services to more accurately reRect the diversity of the communities they police. There has been an increasing focus on the health and wellness of
I
I
police officers and on the experiences of women police officers who may experience
sexual harassment and discrimination in the workplace.
KEY POINTS REVIEW
I
1. The first full-time police force was created in London in 1829 by Sir Robert Peel who set
out a number of principles that still apply to policing.
2. Early municipal police forces in Canada had a mandate to police conflicts between
groups, to maintain moral standards, and to apprehend criminals.
3. It is by historical accident that the RCMP is today involved in federal, provincial, and
municipal policing.
4. The four levels of policing in Canada are federal, provincial, municipal , and Indigenous
communities.
5. The RCMP has a number of distinct features, including training all of its recruits in a
central location prior to their deployment across the country.
6. There has been a rapid growth in private security services.
7. In a democratic society, there are natural tensions between the power and authority of
the police and the values and processes that exist in a democratic society.
8. The structures of police governance include police acts, policing standards, and police
boards and commissions.
9. Traditionally, the police role has been categorized into crime control, order maintenance, and service, although in current times this may not capture the complexity of
the police role.
10. Police services have developed a number of programs to increase their diversity.
11 . There are a variety of models across the country for training police recruits .
12. The various pressures and demands placed on police officers contribute to what
researchers have called the working personality of the police, although there is some
evidence to suggest that there has been some erosion in the "us versus them" mentality
of the police.
\
13. Police officers encounter challenges related to their profession , as illustrated by the
prevalence of occupational stress injuries and the experiences of women police officers
in the workplace.
KEY TERM QUESTIONS
1. Define policing.
2. What is meant by the pluralization of policing?
NEL
CHAPTER 4: The Structure and Roles of the Police
95
3. Define and contrast the social contract perspective and the radical perspective on the
role of the police.
4. What is meant by political policing?
5. Discuss the role of police acts, policing standards, and police boards and commissions
in police governance.
6. Describe the components of core policing.
7. What is the Royal Canadian Mounted Police Act?
8. Define contract policing.
9. Identify the basic qualifications and preferred qualifications for police candidates
required by police services in the recruitment process.
10. Why is operational field training considered to be an important part of the training/
learning process for new police officers?
11. Define the working personality of the police and identify its components .
12. Discuss operational stress injuries and how they may be manifested in police officers.
13. What is post-traumatic stress disorder and what are some of its symptoms?
CRITICAL THINKING EXERCISE
Critical Thinking Exercise 4.1
A Police Service Recruiting Video: A Closer Look
Watch the video, "Becoming a Police Officer: Kingston Police Force," at https://www
.youtube.com/watch?v= _9RVuDlrVao .
Your Thoughts?
1. What is your assessment of this recruiting video?
2. In your view, does it accurately reflect what the police do?
3. What topics, if any, are missing from the video?
CLASS/GROUP DISCUSSION EXERCISE
Class/Group Discussion Exercise 4.1
Should the Role and
umbers of Private Security Officers Be Expanded?
The number of private security officers in Canada continues to increase. Proponents of
private security contend that increasing and expanding the role of private security provides
a way to control policing costs, while at the same time ensuring public safety and security.
A key argument that is offered in support of the expansion of private security is economic:
that subcontracting services to private security firms provides an opportunity to save money.
For example, the total compensation of a police officer with the Service de police de la
Ville de Montreal (SPVM) is approximately $120,000, compared to $40,000 for a private
security agent.•
Opponents of expanding the role and use of private security counter that these organizations
are not subject to the same level of oversight as the public police; for example, they are not
accountable to provincial police acts or to oversight by police complaint agencies; private
security officers do not receive sufficient training (in most provinces/territories, it averages
96
Part 11: The Police
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1
\
\
4tl0 hours); and that the first allegiance of private security officers is to private business rather
'
ian to the public.
Your Thoughts?
l. What is your view on private security?
2. Should there be limi ts on what private security officers can do?
3. Where do you most frequently see private security officers?
4. Should cost be the primary consideration as to whether the role of private security
should be expanded?
•. M. Bedard and/. Guenette. 2015, January 29. "Private Reinforcement for Public Police forces?" MEI. http:/A,~vw
.,edm.org/52244-private-reinforcernents-for-public-policc-forces.
MEDIA LINKS
Into the Fire (Canada Is a Police State), Press for Truth, April 21, 20 11 . https://www.youtube
.com/watch?v5zejD0UkMGGY
"Behind the Line," The Fifth Estate, CBC, December 9, 2011. http://www.cbc.ca/player/
play/2245698171
"Whistleblowers: Victoria Cliffe-Sexual Harassment in the RCMP," The Fifth Estate, CBC,
September I, 2016. https://www.youtube.com/watch?v=lE5 t_pAXyuO
"Peter's Story," Royal Canadian Mounted Police," December 10, 2014. https://www.youtube
.com/watch?v=Bs7sub82RNM
REFERENCES
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2. C. Clarke and C. Murphy. 2002. In Search of Security:
The Roles of Public Police and Private Agencies [discussion
paper]. Ottawa: Law Commission of Canada, p. 8. https://
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Paper%20E .pdf?sequence=l.
3. Polite Ire. 20 12. "The Police: The Case Aga inst," p. 5. https://
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4. R. Jochelson, K. Kramer, and M. Doerksen. 2014. The
Disappearance of Criminal Law: Police Powers and the
Supreme Court. Black Point, S: Fernwood Publishing, p. 10.
5. R. Whitaker, G.S. Kealey, and A. Parnaby. 2012. Secret
Service: Political Policing in Canada from the Fenians to
Fortress America. Toronto: University of Toronto Press.
6. S. Hewitt. 2000. '"Information Believed True': RCMP
Security Intelligence Activities on Canadian University
Campuses and the Controversy Surrounding Them,
1961-1971," Canadian Historical Review, 81(2), 191-228.
NEL
7. S. Hewitt. 2002. Spying 101: The RCMP's Secret Activities
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8. P.K. Manning. 2005. "The Police: Mandate, Strategies,
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9. Law Commission of Canada. 2006. In Search of Secu rity:
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10. S. Mill er and J. Blackler. 2005. Ethical Issues in Policing.
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Belmont, CA: Wadsworth/Cengage
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13. Ibid.
CHAPTER 4: The Structure and Roles of the Police
97
14. D.H. Bayley. 2005. "What Do the Police Do?" in Policing:
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15. S. Meyer. 2013, January 23. "$ 12M in Policing Costs
Spent on Mental Health Calls," Our London. https://www
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-spent-on-men ta I-heal th-calls.
28. J. Kiedrowski, N. Jones, and R. Ruclclell. 2017. "'Set Up to
Fail': An Analysis of Self-Administered Indigenous Police
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584-598.
16. EA. Latimer, D. Rabouin, Z. Cao, A. Ly, G. Powell, T. Aubry,
... P.M. Goering, for the At Home/Chez Soi Investigators.
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Illness in 5 Canadian Cities: A Large Prospective Follow-up
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E576.full.pdf+ hbnl?sid =d0a46cc2-8a l 9-46e7-80d l-62d2695
5b9a0.
29. R. Montgomery and C.T. Griffiths. 2015. The Use of
Private Security Services for Policing [Research report
20 I 5-R04 l ]. Ottawa: Public Safety Canada, p. 7. https://
www. pub] icsafety.gc .ca/en t/rsrcs/pblctns/arch ive-2015
-r04 l/20 l 5-r04 l-en.pclf.
17. C. Murphy. 2012. "Canadian Police and Policing
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and K. Varma , 1-20, Toronto: Oxford University Press, p. 15 .
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19. G. 1gabo. 2016, May 16. "1oronto the Diverse: BBC
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ews. http://www.metronews.ca/news/toronto/2016/05/16/
toron to-the-diverse.html.
20. T.J. Juliani, C.K. Talbot, and C.H.S. Jayewardene. 1984.
"Municipal Policing in Canada: A Developmental
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21. Griffiths, Canadian Police Work.
22. M. Burczycka. 2013. Police Resources in Canada 2012.
Statistics Canada Catalogue no. 85-225-X. Ottawa: Minister
of Industry. http://www.statcan.gc.ca/pub/85-22 5-x/85-22 5
-x2012000-eng.pdf.
23. J. Greenland and S. Alam. 2017. "Police Resources in
Canada, 2016," Juristat, 37(1). Statistics Canada Catalogue
no . 85-002-X. Ottawa: Minister of Industry. http://www
.statcan.gc.ca/pub/85-002-x/201700 l /article/14 777-eng. pelf.
24. C.T. Griffiths and . Pollard.2013. Policing in Winnipeg: An
Operational Review. Ottawa: Canadian Police Association.
h ttp://curtgri ffi ths.com/wp-conten t/u ploacls/2014/09/WPS
-opera tiona I-review. pelf.
25. "What We Do and Why We Do It." n.d. Communications
Security
Establishment.
https://www.cse-cst.gc.ca/en/
insicle-interieur/what-nos.
26. P. Palango. I 998. The Last Guardians - The Crisis in the
RCMP. Toronto: McClelland and Stewart.
27. C. Curtis. 2016, May 22. "Special Report: For Quebec's
Aboriginal Police, Critics Say Pay Is o Match for the
98
30. G. Kitteringham. 2009, December 21. "Relationship
between Public Police and Private Security Is Improving,"
Canadian Security. https://wv,1w.canacliansecuritymag.com/
Eel uca ti on/Edi tori aI/Re la ti onsh ip-be tween-pub Ii c-pol ice
-and-private-security-is-improving.html.
31. Montgomery and Griffiths, The Use of Private Security
Services for Policing.
32. R. McLeod. 2002. Parapolice: A Revolution in the Business
of Law Enforcement. Toronto: Boheme Press.
33. G.S. Rigakos. 2003 . The ew Parapolice: Risk Markets and
Commodifzed Social Control. Toronto: University of Toronto
Press.
34. Montgomery and Griffiths, The Use of Private Security
Services for Policing, p. 7.
35. B. Dupont and S. Tanner. 2009. " ot Always a Happy
Ending: The Organisational Challenges of Deploying
and Integrating Civilian Peacekeepers (A Canadian
Perspective)," Policing <Y Society, 19(2), l34-l46.
36. K. Keighley. 2017. "Police-Reported Crime Statistics in
Canada, 2016," Juristat, 37( 1). Statistics Canada Catalogue
no. 85-002-X. Ottawa: Minister of Industry. http://www
.statcan .gc.ca/pub/85-002-x/201700 l /article/5484 2-eng.pdf.
37. M. Allen and S. Perrault. 2015. "Police-Reported Crime in
Canada's Provincial orth and Territories, 2013," Juristat,
35(] ). Statistics Canada Catalogue no . 85-002-X. Ottawa:
Minister of Industry. http://www.statcan .gc.ca/pub/85
-002-x/201500 l/article/14165-eng.pclf
38. B. Henson, B.W. Reyns, C.F. Klahm, and J. Frank. 2010.
"Do Good Recruits Make Good Cops? Problems Predicting
and Measuring Academy and Street-Level Success," Police
Quarterly, 13(1), 5-26.
39. D.P. Rosenbaum, AM. Schuck, and G. Cordner. 201 I. The
ational Police Research Platform: The Life Course of ew
Officers. Research Review. Washington, DC: ational Institute
of Justice. https://www.nationallawenforcementplatform
.org/wp-content/uploads/2017 /0 5/RecruitsLifeCourse. pelf.
Part II: The Police
NEL
40. Greenland and Alam, "Police Resources in Canada, 2016,"
p. 3.
41. S.-J. Battersby. 2016, February 12. "Meet the ewest
Members of the Toronto Police," Toronto Star. https://www
.thestar.com/news/gta/2016/02/12/meet-the-newest-mem bers
-of-the-toronto-pol ice.html.
42 .
I
I
I
. Keeler. 2017, June 25. "'A Diverse Group': Edmonton
Police Launch Canada's First Mentorship Academy,"
CBC
ews. http://www.cbc.ca/news/canada/edmonton/
edmonton-police-mentorship-academy-l.4175177.
43. J. Marcoux, K. icholson, V.-L. Kubinec, and H. Moore.
20 l 6, July 14. "Police Diversity Fails to Keep Pace with
Canadian Populations," CBC ews. http://www.cbc.ca/
news/canada/police-diversity-canada-1 .367795 2.
44. Ibid.
45. Ibid .
46. J.B .L. Chan. 2003. Fair Cop: Leaming the Art of Policing.
Toronto: University of Toronto Press.
47. A.T. Chappell and L. Lanza-Kaduce. 2009. "Police
Academy Socialization: Understanding the Lessons Learned
in a Paramilitary-Bureaucratic Organization," Joumal of
Contemporary Etlmography, 39(2), 131-158.
48. Personal communication, September 2013.
49. J.K. Skolnick. 1966. Tustice without Trial: Law Enforcement
in Democratic Society. New York: John Wiley and Sons,
p. 4.
50. A. Goldsmith. 1990. "Taking Police Culture Seriously:
Discretion and the Limits of the Law," Policing and Society,
1(2), 91-114.
56. C . Ma, M.E. Andrew, D. Fekedulegn, J.K. Gu, TA. Hartley,
L.E. Charles, J.M. Violanti, and C.M. Burchfiel. 2015.
"Shift Work and Occupational Stress in Police Officers "
Safety and Health at Work, 6(1), 25-29. https://www.ncbi
.n lm .nih .gov/pmc/articles/PMC4372 l 86 .
57. M. Morash, R. Haarr, and D.-H. Kwak. 2006. "Multilevel
Influences on Poli ce Stress," Journal of Contemporary
Criminal Justice, 22(1), 26-43 .
58. J.R.L. Parsons. 2004. "Occupational Health and Safety Issue
of Police Officers in Canada, the United States, and Europe:
A Review Essay." https://www.mun .ca/safetynet/library/
OHandS/OccupationalHS.pdf.
59. M.L. Arter. 2008. "Stress and Deviance in Policing," Deviant
Behavior, 29( l ), 4 3-69.
60. L. Duxbury and C . Higgins. 2012. Caring About Those Who
Serve: Work-Life Confl.ict and Employee Well-Being Within
Canada's Police Departments. Ottawa and London , ON:
Ca rleton University and the University of Western Ontario.
http://sprott.carleton.ca/wp-content/files/Duxbury-Higgins
-Pol ice20 l 2_full report. pdf.
61. Marin, /n the Line of Duty, p. 20.
62. J.M. Shane. 2010. "Organizational Stressors and Police
Performance," Touma/ of Crimina l Justice, 38( 4), 807-818.
63. K.D. Hassell , C.A. Archbold, and A.J. Stichman. 2011.
"Comparing th e Workplace Experiences of Male and
Female Police Officers: Examining Workplace Problems,
Stress, Job Satisfaction and Consideration of Career
Change," International Touma / of Police Sciences and
Management, 13(1), 37-53.
51. S. Herbert. 1998. "Police Subculture Revisited," Criminology,
36(2), 343-369.
64. B. Pearsall. 2012, June. "Sleep Disorders, Work Shifts and
Officer Wellness," If Touma/, 270. https://www.ncjrs.gov/
pdffiles l/nij/238487.pdf.
52. E.A. Paoline. 2004. "Shedding Light on Police Culture: An
Examination of Officers' Occupational Attitudes," Police
Quarterly, 7(2), 205-237.
65. K.M. Gi lmartin. 2002. Emotional Survival for Law
Enforcement: A Guide for Offi.cers and Their Families.
Tucson, I\Z : E-S Press.
53. A. Marin. 2012. ln the Line of Dut:y. Toronto: Ombudsman of
Ontario, p. 83. https://www.ombudsman.on .ca/Files/sitemedia/
Docu men ts/Investigations/SO RT%20 Investiga tions/O PP
-final-E .pdf.
66. W.P. McCarty and W.G. Skogan. 2013. "Job-Related
Burnout Among Civilian and Sworn Police Personnel ,"
Police Quarterly, 16(1), 66-84.
54. K. Dowler and B. Ara i. 2008. "Stress, Gender and Policing:
The Impact of Perceived Gender Discrimination on
Sym ptoms of Stress," lntemational Touma/ of Police Science
6 Management, 10(2), 123-135 .
55. K.D. Hassell and S.G . Brandl. 2009. "An Examination of the
Workplace Experiences of Police Patrol Officers: The Role
of Race, Sex, and Sexual Orientation," Police Quarterly,
12(4), 408-430.
NEL
67. Griffiths and Pollard, Policing in Winnipeg: An Operational
Review.
68. S. Wilson, H. Gul iani, and G. Boichev. 2016. "On the
Economics of Post-Traumatic Stress Disorders Among First
Responders in Canada," Journal of Community Safety and
Well-Being, 1(2), 26-31.
69. Marin, /n the Line of Duty, p. 43.
70. Griffi ths and Pollard, Policing in Winnipeg: An Operational
Review.
CHAPTER 4: The Structure and Roles of the Police
99
71. Marin, ln the Line of Duty, p. 79. Reprinted by permission
of the Office of the Ombudsman of Ontario.
72. M . Smee. 2016, August 18. "More Toronto Police Officers
Than Ever Seeking Help, TPS Psychologist Says," CBC
ews. http://www.cbc.ca/news/canada/toronto/more-toronto
-pol ice-officers-than-ever-seeking-he Ip-tps-psyc ho logist
-says-1.3727301.
73. CBC ews. 2015, December 22. "PTSD to Be Recognized
as Work-Related Disease in Manitoba Starting Jan. l ."
http:/ /www.cbe.ca/news/ca nada/ma n i to ba/ptsd-to-be
-recognized-as-work-re la ted-disease-i n-m an i to ba
-starting-jan-1-1.3 376872.
74. K. Dowler and B. Arai. 2008. "Stress, Gender and Policing:
The Impact of Perceived Gender Discrimination on
Symptoms of Stress," Intemational Joumal of Police Science
6 Management, 10(2), 123-135.
75. J. O'Brien. 2016, August 30. "Growing umber of Women
on Canadian Police Forces o Match for 'Old Boys' Club,'
Researcher Finds," ational Post. http://nationalpost.com/
news/ca na cla/growi ng-nu m ber-of-wom en-on-ca nad ia n
-police-forces-no-match-for-old-boys-club-researcher-finds.
76. D. Langan, C.B . Sanders, and T. Agocs. 2017. "Canadian
Pol ice Mothers and the Boys' Club: Pregnancy, Maternity
Leave, and Returning to Work," Women 6 Criminal Justice,
17(4), 235-249.
100
77. M. McQuigge. 2017, June I. "Former Officers Suing Ont.
Police ServiceAllegingGencler-Basecl Discrimination," CTV
ews. http://www.ctvnews.ca/canacla/former-officers-suing
-on t-po Ii c e-se rvi ce-a 11egi ng-ge ncl er -based-cl isc rim in a ti on
-1.3439329.
78. K. Harris. 2016, October 6. "Mounties Offer Apology
and $!QOM Compensation for Harassment, Sexual
Abuse Against Female Members," CBC
ews. http://
www. c be. ca/news/po Ii tics/rem p-pa u Ison-compensation
-harassment-1.3793785.
79. Civilian Review and Complaints Commission for the
RCMP. 201 7. Report into Workplace Harassment in the
RCMP. Ottawa: Author, pp. 2-3. https://www.crcc-ccetp
.gc.ca/pdf/harassmentFinR-eng.pdf.
80. D. LeBlanc. 2012, September 17. "Female Mounties
Fear Backlash Over Reporting Harassment, Report
Shows," Globe and Mail. https://www.theglobeandmail
.com/news/national/female-mounties-fear-backlash-over
-reporting-ha rassmen t-report-shows/articl e4 5 50 56 5.
81. A. Lupton . 2016, ovember 18. "Female Police Officers
Risk 'Career Suicide" with Harassment Complaints, Lawyer
Says," CBC ews. http://www.cbc.ca/news/canada/toronto/
programs/metromorning/kate-hughes-heather-mcwilliam
-human-rights-complaint-police-1 . 38 5675 2.
82 . Civilian Review and Complaints Commission, Report into
Workplace Harassment in the RCMP, p. 16.
Part II: The Police
NEL
CHAPTER 5
POLICE POWERS AND
DECISION-MAKING
After reading this chapter, you should be able to
• Discuss the impact of the Charter of Rights and Freedoms on police powers.
• Describe how the police are held accountable for their actions.
• Discuss the role of discretion in police decision-making and the factors that can
influence the decisions of police officers.
• Describe the issues that surround biased policing and racial profiling.
• Discuss the police practice of street checks/carding and the relationship of this
practice to biased policing and racial profiling.
• Discuss the police use of force, less-lethal force options, and the use
of lethal force.
• Describe the powers of the police with respect to search and seizure, detention
and arrest, the interrogation of crime suspects, and entrapment as a limitation
on police powers.
• Describe the various types of police misconduct and the challenges that
surround the complaint process .
PERSPECTIVE
One Man's Experience with Racial Profiling
1am a male with brown skin, and at the time, I also had a beard. I was approached
by a Caucasian police officer while stopped at a red light in Scarborough. The officer
asked for my license. When I asked why he needed it, he repeated himself and gave
no reason. He then proceeded to raise his voice so I complied as I didn't want to experience what many of my friends, colleagues and family have experienced. He then told
me I could pick my license up at the police station after 3 p.m. When I asked how I was
supposed to drive without it, he walked away. By the time I made it to the police station,
1was extremely upset that my rights were violated and the fact that I was very clearly
racially profiled ... It took almost an hour to get my license back and I left with no
answers and wondering why this happened to me. I tried to get badge numbers from
the officers in question but they refused to provide them ... I sent a formal complaint
but no one ever followed up with me. r,Nest Indian/Caribbean male, age 25-34)
'
Source: Ontario Human Rights Commission. 2017. Under Suspicion: Research and Consultation Report on Racial Profiling in
Ontario. Toronto: Author, p. 34. http://ohrc.on.ca/sites/default/files/Under%20suspicion_research%20and%20consultalion
%20report%20on%20racial%20profiling%20in%200ntario_2017 .pdf. © Queen's Printer for Ontario, 2017. Reproduced
with permission.
This incident high lights the controversial topic of racial profiling, which is one of the
issues that surrounds police powers and decision-making.
In the opening pages of the text, it was noted that, in a democratic society, there will
always be tension between the need to maintain order and the rights of citizens. This
tension is evident in the discussion of the powers and decision-making of the police.
How can society extend the police sufficient authority to ensure order and pursue criminals, while at the same time protect the rights of citizens? To imagine what life would
be like in a "police state," you need only look to countries where the police have no
limits on their power. A police fo rce with unlimited power m ight be more effective, but
it would also interfere with the freedoms Canadians enjoy.
A key question is: How can Canadian society balance the rights of citizens with the
police authority to ensure order and to pursue criminal offenders? Some in Canada feel
that the police have too much power as reflected in the radical perspective of the police
discussed in Chapter 4. Defining the limits of police power is an ongoing process.
One of the difficulties is that persons who have contact with the police may not
know what powers the police have nor their individual rights. This may be particularly
problematic for persons newly arrived in Canada but may also be the case for many
Canadian citizens, including the elderly and the mentally disabled. The situation is
made even more complex by the fact that the powers of the police, and the limitations
placed on the police by legislation and court decisions, are constantly evolving. The
website http://scc.lexum.org is a good resource for following Supreme Court of Canada
(SCC ) decisions related to pol ice powers.
THE CHARTER OF RIGHTS AND FREEDOMS
AND POLICE POWERS
The Canadian Charter of Rights and Freedoms has had a significant impact in defining
the powers of the police. The Charter entrenched the constitutional rights of those
accused of crimes, who have the right to challenge the actions of the police if those
rights have been violated. 1
102
Part II: The Police
NEL
Several sections of the Charter set out the rights of citizens, including the following:
Section 7: _Everyone has the ri~ht to life, liberty and security of the person and the right not
to be depnved thereof except 111 accordance witl1 the principles of fundamental justice.
Section 8: Everyone has the right to be secure against unreasonable search or seizure.
Section 9: Everyone has the right not to be arbitrarily detained or imprisoned .
Section 10. Everyone has the right on arrest or detention
(a) to be informed promptly of tl1e reasons therefor;
(b) to retain and instruct counsel without delay and to be informed of that right; and
(c) to have the validity of the detention determined by way of habeas corpus and to
be released if the detention is not lawful.
Section 11: Any person charged with an offence has the right
(a) to be informed without unreasonable delay of the specific offence ...
Charter rights, combined with pre-existing legal rules, are designed to provide legal
safeguards against the unlimited use of police power.
Besides entrench ing constitutional rights for persons accused of crimes, the Charter
gave those accused the right to challenge the actions of the police in situations where
those rights might have been violated. These safeguards include the following:
• The police must have a search warrant to get information from Internet services about
the identity of subscribers who are under investigation (R. v. Spencer, 2014 SCC 43 ).
• There are limits on the use of "Mr. Big" stings (see below), whereby suspects are placed
in the position where they have "confessed" to committing a crime (R. v. Hart, 2014
sec 52).
• Severe restrictions have been placed on the investigative strategy of placing an undercover officer in a jail cell to elicit evidence from a criminal suspect (R. v. Hurley, 2010
sec 18).
• All relevant information gathered during a case investigation must be disclosed to tl1e
defence counsel (R. v. Stinchcombe, (1991] 3 SCR 326). (See Chapter 8.)
• In crafting policies for strip searches, tl1e police must consider that Indigenous women
and other minorities may have a fear of strip searches and, due to their life experiences,
may experience a strip search as a sexual assault (R. v. Golden, 2001 SCC 83).
However, in its rulings, the SCC has also given the police significant powers:
• The SCC has ruled in favour of tl1e police practice of using thermal-imaging technology
deployed for aircraft to detect high levels of "heat" from homes, a key indicator of marijuana grow-ops (R. V. Tessling, 2004
67).
sec
• The court reaffirmed the principle that the police can continue to question a suspect
at length , even if the suspect repeatedly tries to invoke his or her right to silence (R. v.
Singh , 2007 SCC 48).
• The SCC held that the Charter does not require the presence, upon request, of defence
counsel during a custodial interrogation (R. V. McCrimmon, 2010
36; R. V. Sinclair,
sec
2010 sec 35).
\
• The court has given police the authority to use a warrant to obtain D A from a suspect,
by force if necessary (R. V. Saeed, 2016
24).
sec
In addition, legislation may extend the powers of the police. The Anti-terrorism Act
(S.C. 2001 , c. 41 ) gives the police tl1e authority to arrest a person without a warrant and
have that person detained in custody if the officer suspects, on reasonable grounds, tl1at
tl1e person's detention is necessary in order to prevent a specific terrorist activity.
NEL
CHAPTER 5: Police Powers and Decision-Making
103
The courts will continue to be involved in defining the powers of the police. The
increasing use of high-tech surveillance devices by police will give rise to allegations that the police are abusing their authority and violating the rights of citizens.
These issues surround the police practice of using a surveillance device known as
an IMSI catcher (also commonly referred to as "Stingray") . These devices act as
fake cellphone towers and force every cellphone within its range to connect and
communicate essential identification information, including the cellphone's id, the
2
id of the cellphone's SIM card , the cellphone carrier, and its country of origin. A
challenge is that the device not only records this information from the cellphone of
a suspect but also from everyone else who is in range . Lawyers have argued that the
use of these devices is illegal, and there no doubt will be legal challenges to their
use in the future. 3
POLICE ACCOUNTABILITY
The considerable powers of the police, including the authority to use lethal force and
the ability to exercise discretion, require that there be structures of accountability and
oversight. For Canadian criminologists Curtis Clarke and Chris Murphy, the principle
of accountability means that "th e actions of policing individuals/agencies are subject
to review [and) there are formal channels that individuals can use to lodge complaints
against policing bodies." 4
Historically, the police investigated themselves. However, the increasing visibili ty
of the police and a number of high-profile incidents have increased media and public
scrutiny of the police. This provided the cata lyst for the rise of civilian oversight
and the emergence of models of accountability that include civilian involvement
in investigations and, in several jurisdictions, independent civilian investigations
and oversight.
Police officers can be held accountable for their actions under the Criminal Code
(R.S.C . 1985, c. C-46), civil law, provincial statutes, and freedom of information acts .
As well , various police boards, complaint commissions, and investigative units both
within and outside police services have the authority to oversee and review the actions
and decisions of police officers.
There are two external boards of review that oversee the activities of RCMP
officers: the External Review Committee (ERC ) and the Civilian Review and
Complaints Committee for the RCMP (CRCC ). The ERC hears appeals from
RCMP members who have been disciplined for an infraction of force regulations
(see http://www.erc-cee.gc.ca/index-en.aspx). The C RCC is an independent federal
agency that receives and reviews complaints made by citizens about the conduct of
RCMP officers who are policing under contract-that is, who are serving as provincial or municipal police officers (see https://www.crcc-ccetp.gc.ca ). It ma y also
initiate investigations into serious incidents involving the RCMP police or issues
involving RCMP officers if the CC RC determines it is in the interests of the public
to do so.
Governments may call commissions of inquiry or appoint task forces to enquire into
specific incidents involving the police. In certain cases of a police-involved death , a
coroner's inquest will be held . The objective of the inquest will be to determine the
identity of the deceased, the me 0 dical cause of the death, and when, where, and how
the death occurred. The inquest will also issue a number of (non-binding) recommendations designed to prevent deaths of a similar nature in the future. 5
104
Part II: The Police
Principle of accountability
The actions of police officers and police
services are subject to review and there
are formal channels that individuals
can use to lodge complaints against
the police.
NEL
AT ISSUE 5.1
\
SHOULD THE POLICE PAY OFFENDERS FOR INFORMATION ON THE CRIME THEY HAVE COMMITTED?
Clifford Robert Olson was a serial child killer who terrorized the
Greater Vancouver Region during 1980-81. He stalked and killed
at least 11 children and sexually abused many others. Once apprehended, he blackmailed authorities in a cash-for-corpses agreement
whereby his family was paid $100,000 in exchange for him leading
police to the bodies of his victims. The families of the deceased children supported this decision in order to learn the circumstances of
the deaths and to reach closure. The decision on the part of the police
was highly controversial, and the ethics of the police decision were
debated for many years. a
A similar case occurred in Winnipeg, wherein the Winnipeg Police
Service paid a serial killer $1,500 for information on missing and
murdered women in Manitoba. Arrested on a sexual assault charge
unrelated to homicides, Shawn Lamb subsequently made a deal with
the police to provide information on two women he confessed to killing
if money were deposited into his canteen account in the jail. He subsequently agreed to a plea bargain and was sentenced to 20 years in
prison with no possibility of parole for 10 years.b
More common is for the police to pay offenders for information. As
an example, the RCMP in Kamloops, British Columbia, paid a low-level
drug dealer $200,000 to assist them in apprehending the biggest
drug dealers in the city.c Also in British Columbia, the RCMP paid an
ex-gangster $400,000 to assist in an invesligation.d
QUESTIONS
1. In your view, what ethical issues are raised by the practice of paying
offenders for information?
2. Do you agree with the decisions of the police in the Olson case and
the Lamb case to pay for information?
3. Are there any ethical issues raised by paying informants who may
be involved in a criminal lifestyle for information?
4. Should there be guidelines on when and how much offenders
should be paid for information?
5. Should the police consider the wishes of the victims' families when
deciding whether to pay an offender for information about their crimes?
•I.Mulgrew. 2013, October 3. "Clifford Olson-Onada's National MonsterDead at 71," Vancouver Sun. http://www.vancouversun.com/news/
Clifford+Olson+Canada+national+monster+dead/5484826/story.html.
b M. McIntyre. 2013, November 15. "Cops Pay Serial Killer Lamb $1 ,500 for Information
on Killings," Winnipeg Free Press. https://www.winnipegfreepress.com/local/Police
-admit-paying-serial-killer-Lamb-for-information-on-killings-232090561.html.
' R. Koopmans. 2009, November 24. "Police Paid Informant $200,000," Kam/oops Daily
News. httpJ/www.kamloopsnews.ca/news/city-region/police-paid-informant
-200-000-1.1237152.
d K. Bolan. 2017, May 16. "Ex-UN Gangster Worked 20 Days for $400,000 in Deal with
Mounties," Vancouver Sun. http://vancouversun.com/news/crime/ex-un-gangster
-worked-20-days-for-400000-in-deal-with-mounties.
POLICE ETHICS
In carrying out their tasks, Canadian police officers are required to adhere to codes of
conduct and ethics. These are contained in the various provincial police acts across
the country, in provincial policy documents, and in the manuals of individual police
services. The British Columbia Police Code of Ethics, for example, contains the statement of fundamental principles of policing, guiding values (i.e., citizenship, fairness,
integrity, and respect), a statement of the primary responsibilities of police officers, and
questions that should guide the ethical decision-making of officers. 6
Among the questions that are designed to assist police officers in avoiding ethical
difficulties are the following: "Is the activity or decision consistent with organizational
or agency policy and the law?" "Do the outcomes or consequences generate more harm
than good?" "What are the outcomes or consequences resulting from the activity or
decision and whom do they affect?" and "Ca n the activity or decision be justified legally
and ethically?" The code of conduct for Ontario police officers is set out in the Ontario
Police Services Act (R.S.O. 1990, c. P. 15).
One example of the ethical dilemmas that the police face is the practice of paying
offenders. See At Issue 5.1.
\
\
POLICE DISCRETION AND DECISION-MAKING
The majority of the thousa nds of decisions that police officers make in the course of
their duties are routine. So too may the decisions of police officers be controversial,
such as in the case of alleged biased policing and racial profiling, discussed below.
NEL
CHAPTER 5: Police Powers and Decision-Making
105
THE EXERCISE OF DISCRETION
A patrol officer who is faced with the need to make a decision and who chooses between
different options is exercising discretion.
Discretion is an essential component of policing because no set oflaws or regulations
can prescribe what a police officer must do in each and every circumstance. Because it
is impossible for officers to enforce all laws all of the time, they practise selective or situational enforcement. As the seriousness of the incident increases, however, the amount
of discretion an officer can exercise decreases. The pervasiveness of cellphone cameras
has also increased the visibil ity of police decision-making and the scrutiny of officer
Discretion
The power or right to decide or act
according to one's own judgment.
discretion and decision-making.
For police personnel, the authority to use discretion is set out in statutes such as the
Criminal Code. For example, if an individual is found committing an offence, he or
she may be arrested. Arrest, then, is not a strict obligation on the part of the police.
The decisions a police officer makes may ultimately be scrutinized by the courts or the
public, particularly when it is alleged that the officer abused discretionary powers and
in doing so violated a person's legal rights. In the case of R. V. Beaudry (2007
5), for
example, the SCC held that a police officer's discretion is not absolute and its use must
be justified on both subjective and objective grounds. Officer Beaudry was convicted
of obstruction of justice for having failed to gather evidence in an incident involving
another police officer who was suspected of impaired driving.
There are situations in which a police officer's discretion is constrained. In cases
of domestic violence, there are "mandatory charge" or "zero tolerance" policies that
require police officers to arrest the suspect in cases where there is evidence that an
assault has occurred, even if the alleged victim does not want an arrest to be made.
sec
TYPIFICATIONS AND RECIPES FOR ACTION
Patrol officers bring to their work a set of cognitive lenses through which they make
determinations about the people and events they encounter. They use a conceptual shorthand consisting of typifications and recipes fo r action to tailor their decision-making to the particular area and population being policed .7 A visual cue such as
a poorly dressed individual in an upscale neighbourhood would attract the attention
of officers on patrol , as would a behaviour or activity considered out of place in a particular area. The risk is that racial profiling may result. ote that there may be among
officers considerable variability in their policing "styles," and this will affect how they
assess situations and the actions taken.
Officers who are assigned to a fixed geographical area for an extended period of time
develop an intimate knowledge of its persons and places as well as extensive contacts
with community groups, agencies, and organizations that are facilitative of policecommunity partnerships and the identification of and response to problems. How a
situation or a person is "typified" may play a significant role in the recipes for action.
This determination may involve judgments by police officers as to who they regard
as "good" and "bad" people.8 This may, in turn, affect how the officers exercise their
discretion. A concern is that these cognitive processes may result in biased policing and
the racial profiling of certain persons and groups.
Typifications
Constructs based on a patrol officer's
experience that denote what is typical
about people and events routinely
encountered.
Recipes for action
The actions typically taken by patrol
officers in various kinds of encounter
situations.
BIASED POLICING AND RACIAL PROFILING
In carrying out their tasks, police officers must be aware of the Charter provisions that
require the equal treatment of citizens (see Chapter 4). This applies to a wide range
106
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of persons and groups in society. In recent years, a flashpoint between the police and
communities has been racial profiling.
\
Bias-free policing
The requirement that police officers
make decisions on the basis of reasonable suspicion and probable grounds
rather than based on stereotypes about
race, religion, ethnicity, gender, or other
prohibited grounds.
Police officers are expected to engage in bias-free policing, which requires that their
decisions are "based on reasonable suspicion or probable grounds rather than stereotypes about race, religion, ethnicity, gender or other prohibited grounds."9 Bias-free
policing requires the equitable treatment of all persons of diversity.
One manifestation of biased policing is racial profiling, defined in Chapter 3. To
refresh your memory, it is defined as "any action undertaken for reasons of safety,
security, or public protection that relies on stereotypes about race, colour, ethnicity,
ancestry, religion, or place of origin rather than on reasonable suspicion, to single out
an individual for greater scrutiny or different treatment." 10 In R. v. Brown ([2003] OJ
o. 1251 ), the Ontario Court of Appeal defined racial profiling as involving "the targeting of individual members of a particular racial group, on the basis of the supposed
criminal propensity of the entire group." It has been noted that racial profiling "may
result from police officers' internal implicit bias, which stems from unconscious stereotypes, or explicit bias, which arises from conscious stereotypes. Courts and tribunals
have recognized that racial stereotyping will usually be the result of subtle unconscious
beliefs, biases and prejudices." 11
Over-policing
A disproportionate police focus on a
racialized population or neighbourhood.
Pretext policing
Police stops or searches for a minor
reason that are used for more intrusive
intervention.
At issue is whetl1er certain persons and groups, because of tlieir attributes, are singled out for attention by the police based on who they are ratlier than what they have
allegedly done. Racial profiling may be a consequence of over-policing and pretext
polic ing. Over-policing occurs when the police focus disproportionatel y on a racialized population or neighbourhood. Over-policing often results in disproportionate
police contacts with members of racialized groups and otlier visible/cultural/religious
minority persons.
Pretext policing is most commonly associated witl1 police stops or searches and may
occur for a minor reason, such as a traffic violation, which tlien leads to a more intrusive
intervention, such as a vehicle search.
RACIAL PROFILING VERSUS CRIMINAL PROFILING
Part of tl1e difficulty in determining whether a police service and its officers engage
in racial profiling is distinguishing between racial profiling and criminal profiling.
As discussed in Chapter 4, a defining attribute of tlie police culture is suspiciousness
of people and circumstances. While critics of the police argue that racial profiling is
endemic to police work, police officers contend tliat tl1ey profile criminals, witli particular attention to "signals and 'unusual fits."' 12
A visible-minority officer in the Hamilton Police Service offered tlie following perspectives on racial profiling, criminal profiling, and the importance of tlie context in
which a person is identified for a police stop:
When we're out on the street, we rely on our instincts. We are trained investigators in
the sense that we need to do profiling. And what kind of profiling is that? Criminal
profiling. It has nothing to do with racial profiling .... We profile criminals. 13
This is the process of typification discussed earlier. The Ontario Human Rights
Commission has made the distinction between racial profiling and criminal profiling by noting that criminal profiling is based on objective evidence of wrongdoing
by an individual, while racial profiling is based on stereotypical assumptions about
persons or groups of persons who are deemed more likely to engage in criminal
behaviour. 1-1
\
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CHAPTER 5: Police Powers and Decision-Making
107
PERCEPTIONS OF AND EXPERIENCES WITH BIASED POLICING
AND RACIAL PROFILING
In examining the issues of biased policing and racial profiling, it is important to consider the lived experiences of racialized and other minority groups. A project focusing
on youth in the Jane-Finch community in Toronto gathered the perceptions of young
= 50) . 15 One youth commented on the negative stereotypes that are often
persons (
held of young Black men:
People automatically see you as a black young person and they feel that you being
black, you would never amount to nothing. Especially coming from the Jane-Finch
community, automatically number one that they think is that you being black, you're
never going to be nothing good. But that's not always true. 16
Similarly, an Indigenous man offered this observation:
The reservation I live on is located next to a town of9,000 people. The police often
sit on the road between the town and our reserve waiting for people who may violate
the rules of the road. What the police will say is that they are conducting normal
traffic monitoring. Yet if you drive out toward the west of the town where there is
a non-native community the police presence is nearly non-existent. For all I know
maybe it is a good place to issue tickets but to me it looks bad and looks like racial
profiling (First ations male, age 55 and over). 17
The personal experiences with the police of a sample ( = 1,504) of Black residents
in the city of Toronto or the Greater Toronto Area are presented in Figure 5.1. The
responses reveal that there are issues surrounding police-Black encounters. However,
the survey also revealed that a high percentage (64 percent) of Black men between the
ages of 25 and 44 had personal experiences socializing with police, and 39 percent
had been helped by the police. 18 These findings suggest that not all of the encounters
between police and persons in the survey sample were negative.
STREET CHECKS AND CARDING
The issues surrounding racial profiling are illustrated by the ongoing controversy over
the police practice of street checks, also referred to in some jurisdictions as carding.
The terms will be used interchangeably in this discussion. Street checks/carding is
an intelligence-gathering technique used by the police in which persons who have
90 -
• Total(%) • Men aged 25 to 44 (%)
79
80 J!I
i 70 -
64
C
~ 60 - 55
£
~ 50
~
-
• FIGURE 5.1
60
53
44
39
~0 40 -
Personal Experience with Police in
Community or GTA, 2017
44
42
35
38
36
31
& 30 .I!!
C
~ 20 -
.?:
18
10 0
.. .
Getting Socializing
Being
Requiring
Being
Being
Police not
stopped by with police helped by
police
harassed interviewed responding
police in at social, the police assistance or treated by police promptly
public
cultural or
rudely by
as a
when you
places
official
police
witness to need them
functions
an incident
108
Part II: The Police
24
23
15
I
11
I
Being Police using
arrested
force
against you
Sources: Paradkar, S. 2017. "Black Experience
Project a Heart-Rending Snapshot of Black Lives
in Toronto: Paradkar, • thestar.com, July 20. https://
www.thestar.com/news/gta/2017/07/20/black
-experience-project-a-heart-rending-snapshot
-of-black-lives-in-toronto-paradkar.html; https://
www.theblackexperienceproject.ca/wp-contenV
uploads/2017/07 /Black-Experience-Project-GTA
-OVEAVIEW-REPORT-4.pdf, pages 2786-2848;
httpsJ/www.theblackexperienceproject.ca/wp
-contenVuploads/2017/04/Blace-Experience
-Project-GTA-Oetailed-Data-Tables.pdf
NEL
not committed an offence are stopped and questioned . Information gathered by the
officer is then entered into a police database. 19 There are a variety of reasons why a
police officer may stop an individual: it could be in response to a call from a community resident, to check on the well-being of a person, or in response to a report of a
missing person.
Generally, however, the discussion about street checks/carding has centred on
the findings from studies that a disproportionate number of Blacks and members of
other racialized groups are stopped by the police. Analyses of police data suggest that
Indigenous persons and members of racialized groups are more likely to be subjected
to street checks.
For further insights into the impact of carding on police-community relations in
Toronto, watch the video "Crisis of Distrust: Police and Community in Toronto," listed
in the Media Links section at the end of the chapter.
STUDIES OF BIASED POLICING AND RACIAL PROFILING
The perceptions and experience of members of certain minority groups, particularly
Blacks, have been validated by a number of studies. Keeping in mind that there are
issues with how the data were gathered and analyzed in these studies, they nevertheless
suggest that there are issues related to biased policing and racial profiling that need to
be addressed.
A study in Kingston, Ontario, for example, found that Blacks were overrepresented
in both traffic stops (2.7 times their proportion of the city's population ) and pedestrian
stops (3.7 times their proportion of the city's population). 20 In Halifax, a review of
police records found that, during the period 2005 to 2016, Blacks were three times
more likely to be stopped than Whites. The study also found that persons identified as
Arab or West Asian were 1.9 times more likely to be stopped by police than Whites. 21
See Figure 5.2.
In Montreal, where it is estimated that Blacks are responsible for between 10 and
20 percent of crime, depending upon the type of offence, it has been found that they
represent approximately 40 percent of those stopped and questioned. 22
The results of a study of marijuana arrests in Toronto suggest that the police may
over-police and racially profile Blacks. While surveys indicate that there is little difference in the rates of marijuana use between Blacks and other groups, an analysis of
Toronto Police Service arrest data for 2003 to 2013 ( = 11 ,299) revealed that Blacks
with no history of criminal convictions were three times more likely to be arrested by
FIGURE 5.2 •
Chance of Receiving a Street
Check in Halifax, by Population
Group, 2005-16
\
Source: P. McGregor and A. Macivor, 2017,
January 9. "Black People 3 Times More Likely to
Be Street Checked in Halifax, Police Say," CBC
News. http://www.cbc.ca/news/canada/nova
-scotia/halifax-black-street-checks-police-race
-profiling-1.3925251. Reprinted by permission
of CBC.
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South Asian
(5.0%)
Arab/West
Asian (17.9%)
Halifax
Population
(2011)
Number of
People
Checked
331 ,300
White
Indigenous
18,000
Black
13,700
8,000
EasVSoutheast Asian
Arab/West Asian
6,700
4,000
South Asian
2,600
Other
Total
384,300
30,100
500
4,100
300
1,200
200
300
36,700
EasVSoutheast
Asian (3.8%)
CHAPTER 5: Police Powers and Decision-Making
109
officers for the possession of small amounts of marijuana than Caucasians with similar
backgrounds. 23 More specifically, while Blacks comprise 8.4 percent of the city's population and Whites 53. l percent, Blacks accounted for a disproportionate percentage of
arrests. Note that this study did not examine whether the person who was arrested for
possession of marijuana was also arrested for other offences.
A case in which an Ontario court determined that the police had engaged in racial
profiling is presented in Police File 5.1. ote that the testimony of the police officers
was that they were engaged in criminal profiling rather than racial profiling.
POLICE POLICIES ON RACIAL PROFILING AND STREET
CHECKS/CARDING
A number of Canadian police services have taken measures to address the issue of racial
profiling and the practice of street checks/carding. This includes upgrading training
for officers, identifying officers at risk of engaging in racial profiling, and improving
community relations. 24 Police services have operational policies that explicitly prohibit
racial profiling by their officers. The Edmonton Police Service and the Calgary Police
Service both have street check audits conducted by civilians designed to ensure that
police stops are lawful and unbiased. 25
The policy of the Ontario Provincial Police (OPP), for example, states, "Illegal profiling is not permitted and shall not be tolerated in any respect. Illegal profiling means
taking law-enforcement actions, such as stopping/questioning/searching/detaining/
arresting a person, based solely on the person's: race; sex; ancestry; age; sexual orientation; family status; place of origin; marital status; disability; creed; colour; citizenship;
ethnic origin; [and/or] safe-sex partnership status." 26
POLICE FILE 5.1
A CASE OF RACIAL PROFILING AND CARDING
In 2011 , two Toronto police constables on patrol saw Mutaz Elmardy, a Black man, alone, walking
home at night from the mosque.
The officers stopped Mr. Elmardy and questioned him. One of the officers later testified that
they believed that he was in violation of his bail conditions and had also looked at their police vehicle as they had driven by, while the other officer was concerned that Mr. Elmardy had a weapon
since he had his hands in his pockets. During the encounter, Mr. Elmardy was punched in the face,
knocked to the ground, and handcuffed. He was not advised of his rights to contact a lawyer. A
card was filled out indicating his skin colour (Black) and his birthplace (Sudan).
The case went to trial and the decision of the presiding judge was to award Mr. Elmardy
$27,000. The judge found that during the encounter, he had been unlawfully arrested, searched,
and assaulted. The judge also concluded that the two officers had lied about the reason why they
had stopped Mr. Elmardy in the first place and that their decisions were based on "racial stereotypes." However, the judge did not find that Mr. Elmardy had been racially profiled, noting that he
had been uncooperative and hostile toward the police and had not followed their request that he
remove his hands from his pockets.
Mr. Elmardy appealed the ruling to the Divisional Court. Writing for the three-judge panel, one
of the judges wrote in the decision: "Racial profiling has a serious impact on the credibility and
effectiveness of our police services. It has led to distrust and injustice. It must stop." The court
increased Mr. Elmardy's award to $80,000.
Source: Adapted from J. Gallant. 2017, April 8. "Ontario Court Awards $80,000 to Man Who Was Punched, Cuffed in Case
of Racial Profiling," Toronto Star. https://www.thestar.com/news/gta/2017/04/08/ontario-court-awards-80000-to-man
-who-was-punched-cuffed-in-case-of-racial-profiling.html.
110
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\
In Ontario, concerns about street checks and racial profiling resulted 111 me pn,vincial government setting province-wide guidelines for police services.27 The policy
includes the requirements that police officers inform citizens who voluntarily stop
for them on the street why identifying information is being requested, that the citizen
has the right to not provide any identifying information, and to provide to the citizen
their name, badge number, and instructions on how to contact the provincial office
of the Independent Police Review Director should they have any concerns about the
encounter with the officer. 28
The Ontario policy also requires police services to keep statistics on the age, race,
and gender of persons in all attempted and completed street checks, and this information will be reviewed by an independent audit. 29
Research has found that the extent to which policies on racial profiling are implemented and effective depends in large measure on the police organizational itself, the
strength of its leadership, and the quality of training that officers receive. 30,3 I
The issues surrounding over-policing, biased policing, racial profiling, and street
checks/carding are complex. There is a need for more research that uses both analytics
and the lived experiences of persons who have contact with the police, and of the police
officers who are involved in encounters with community residents .
POLICE TREATMENT OF INDIGENOUS PERSONS
A key feature of Canadian criminal justice is the overrepresentation of Indigenous people
at all stages of the justice system. The high rates of Indigenous arrests in many regions
of the country have raised the question as to whether police officers discriminate against
Indigenous people. Although there is no evidence that Indigenous people are systemically
discriminated against by the police, there have been serious incidents in a number of jurisdictions that have subsequently been found to be tl1e result of discriminatory actions on the
part of police officers. These incidents have often overshadowed the positive relationships
that have been established between many Indigenous communities and the police.
One example is the incidents that occurred in Saskatoon, where observers eventually
coined the term "starlight tour" to describe the police practice of picking up impaired
Indigenous people in the city, transporting them to outlying areas, and dumping them.
In at least one case, these actions were directly responsible for the unlawful confinement of an Indigenous person. See Police File 5.2.
THEPOLICEUSEOFFORCE
The legal authority for the police to use force is found in the Criminal Code, which sets
out the following principles: ( 1) Officers exercising force must be performing a duty
they are required or authorized to do; (2) they must act on reasonable grounds; (3) they
may use only so much force as is necessary under tl1e circumstances; and (4) tl1ey are
responsible for any excessive use of force. Provisions governing the use of force are also
contained in provincial police statutes.
The use of force is intended to gain control and compliance-for example, during
an arrest or while breaking up an altercation. Degrees of force can be placed on a continuum from officer presence and verbal commands through to lethal force. Police are
trained to match the degree of force to the immediate requirements of the situation.
The use of force in excess of what is necessary can leave the officer criminally or civilly
liable for assault or, in rare cases, murder.
\
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CHAPTER 5: Police Powers and Decision-Making
111
POLICE FILE 5.2
"STARLIGHT TOURS"
In January 2000, two Saskatoon police officers picked up an Indigenous
man, Darrell Night, drove him to an industrial park on the outskirts of the
city, and abandoned him in extreme winter weather. Luckily, Night was
assisted by a security guard. He made his way back to the city, where he
subsequently filed a complaint with the police. On the basis of his testimony, two city police officers were convicted at trial of unlawful confinement, fired from their positions, and sentenced to eight months in jail. The
court rejected a request by the two officers that they be sentenced by an
Indigenous sentencing circle. In 2003, the Saskatchewan Court of Appeal
upheld the convictions and the officers began serving their sentences.
The Night case raised suspicions that the Saskatoon police had
transported and dumped other Indigenous people outside the city,
some of whom had frozen to death. Similar incidents included the
discovery of the frozen bodies of Rodney Naistus on January 29, 2000
(a day after Night had been dumped), in the same industrial area, and
of Lawrence Wegner, found frozen to death on February 3, 2000, in
a field outside the city. Naistus was naked from the waist up; Wegner
was not wearing shoes and had no jacket, even though it was winter.
Subsequent investigations by the RCMP were not able to determine
the circumstances surrounding the deaths of the two men.
The cases, however, focused attention on the death of an Indigenous teenager, Neil Stonechild, whose frozen body had been found
in a field on the outskirts of Saskatoon 1Oyears earlier, on November
29, 1990. Stonechild was last seen alive by his friend Jason Roy; at
the time, Stonechild was struggling with two Saskatoon police officers,
who forced him into the back of a police cruiser. The temperature on
the night Stonechild disappeared was -28°C. In February 2003, the
province's justice minister announced a commission of inquiry into
Stonechild's death. In its final report (available online at http://www
.cbc.ca/news2/background/stonechild/stonechild_report.pdn, the
commissioner, the Hon. Mr. Justice D.H. Wright, found that Stonechild
was in the custody of the police on the night he disappeared and that
the injuries that were on his body were caused by handcuffs.a However,
there was no evidence presented that the two police constables actually
dropped Stonechild off outside the city, and therefore, the circumstances surrounding his death remain undetermined. Wright, however, was
severely critical of the initial investigation conducted by the Saskatoon
police, and rejected the version of events offered by the police. Despite
this, the absence of evidence precluded criminal charges being laid
against the officers who were last seen with Stonechild. For an account
of the Stonechild case, see Starlight Tour: The Last, Lonely Night of
Neil Stonechild.b The two officers were subsequently dismissed by the
police service and in 2008, the Supreme Court denied an appeal by the
two officers to have the findings of the Wright inquiry quashed.
These cases heightened tensions between Indigenous people (particularly Indigenous youths) and the police and seriously undermined
earlier efforts by the Saskatoon police to improve police-Indigenous
relations.
There are more recent examples of starlight tours, with Indigenous
women in Val-d' -Or, Quebec, alleging they were subjected to this practice, and a Montreal police officer who was cited for ethics violations
for driving a racialized person around the city in the back of a patrol
car and dropping him off far from his residence.c
•Mr.Justice D.H. Wright (Commissioner). 2004. Commission of Inquiry into Matters
Relating to the Oeath of Neil Stonechild. Regina: Department of Justice, Province of
Saskatchewan. http://www.cbc.ca/news2/background/stonechild/stonechild_report.pdf.
b S. Reber and R. Renaud. 2005. Starlight Tour: The Last, Lonely Night of Neil
Stonechild. Toronto: Random House Canada.
cThe Canadian Press. 2017, October 10. "Former Montreal Cop Known as Agent 728 C~ed
for Ethics Violation," Toronto Star. https://www.thestar.com/news/canada/2017/10/10/
former-montreal-cop-known-as-agent-728-c~-for-ethics-violations.htrnl.
Additional sources: CBC News. 2003, April 14. "Wegner Death Remains a Mystery to
Family." http://www.cbc.ca/news/canada/saskatchewan/wegner-death-remains-a
-mystery-to-family-1.397142; G. Smith. 2004, October 27. "The Death of Neil
Stonechild: Judge Rejects Police Version of Events One Cold Night in Saskatoon," Globe
and Mail. https://www.theglobeandmail.com/news/nationaVthe-death-of-neil-stonechild
-judge-rejects-police-version-of-events-one-cold-night-in-saskatoon/article1006303.
THE FORCE OPTIONS FRAMEWORK
The force options approach to the use of force by police is the foundation of most police
training in Canada. The approach is positive and professional in explaining how and
why police use force in their day-to-day activities. It also provides police administrators
and judicial review personnel with an objective framework in which to analyze use-offorce situations. It also allows police officers to explain, within an accepted format, how
and why force was applied at the time of the altercation.
Although police officers often have no control over the types of encounter situations
they become involved in, they can achieve a measure of control by exercising an appropriate level of response. These responses include five distinct force options that are
available to police officers:
l. Officer presence: The mere presence of a police officer may alter the behaviour of the
participants at an altercation, thereby enabling control of the situation.
112
Part II: The Police
NEL
2. Dialogue: Verbal and non-verbal communication skills may resolve the conflict and
result in voluntary compliance.
3. Empty hands: Physical force is used to gain control.
4. Compliance tools: Equipment or weapons are used to gain control.
5. Lethal force: l11e situation requires complete incapacitation of the subject in order to
gain control, and lethal force is the only option available to reduce the lethal threat.
DECISION-MAKING AND FORCE OPTIONS
Standard police procedures require that officers responding to an incident engage in a
continual risk assessment of the situation in determining the appropriate level of intervention. In conducting this assessment, the responding officers must gather as much
information as possible when the call is first received, while in route, during entry into
the immediate area where the subject is located, and as the incident unfolds.
From an analysis of all of the available information surrounding an incident, the
officer will attempt to select the most appropriate use-of-force response. The goal is to
use the least violent option available that will safely gain control of the situation. The
generall y accepted use-of-force standard is one plus one, meaning that police officers
have the authority to use one higher level of force than that with which they are confronted . The use of force in excess of what is necessary can leave the officer criminally
or civilly liable for assault. There are a number of Canadian police officers who have
been charged with murder or manslaughter following a use-of-force incident. 32
Each encounter situation in which a police officer becomes involved has a unique set of
circumstances and there is always the potential that the situation will escalate very rapidly,
requiring the officer to make a split-second decision. Incidents involving persons who are
mentally ill or drug-impaired are often characterized by a high level of unpredictability. This
may make it difficult for police officers to develop, and effect, a prescribed plan of action.
The absence of national use-of-force statistics in Canada precludes a determination
of the frequency with which the various force options are used. 33 Resea rch studies have
found that young, inexperienced male officers are more likely to use force improperly
and that officers with four-year university degrees and with more years of policing experience are less likely to use physical force. 34,35 ( ote: This has particular implications
in contemporary police services-an increasing number of officers have fewer years on
the job.) Research also suggests that male officers are more likely to shoot than women
officers, and officers with a college education are less likely to be involved in shootings
than officers with lower levels of education. Police officers with a history of involvement
in shootings appear to be more likely to be involved in additional shooting incidents. 36
LESS-LETHAL FORCE OPTIONS
A less-lethal force option can be described as a force option that is highly unlikely to
cause death or serious injury to an individual when properly applied by a police officer.
However, it is possible that death or serious injury may occur, hence the term lesslethal rather than less-than-lethal. Less-lethal weapons include pepper spray, tear gas,
and conducted energy weapons (CEWs; most commonly referred to as Tasers). Police
services have made efforts to train and equ ip officers with less-lethal force options. 37
This possibility of serious harm is especially great if the force option is improperly
applied by the police officer. In these instances, the less-lethal options may contribute
to or even cause serious injury or death. This is illustrated by the ongoing controversy
surrounding the use of the Taser by police officers in encounter situations.
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CHAPTER 5: Police Powers and Decision-Making
113
THE TASER: LESS-THAN - LETHAL OR LETHAL W EAPON ?
Tasers were adopted by Canadian police services as a force option beginning in the late
1990s. The Taser "gun" fires two metal darts that are attached to wires and enter the
subject's skin, providing a shock of up to 50,000 volts of electricity. The expanded use
of the Taser by police services is credited with reducing both the number of deaths of
persons as a result of the police use of lethal force and, as well, the number of officers
injured in the course of carrying out their duties. 38
There has been widespread concern with the use of the Taser on persons who are in
a state of"excited delirium," which may be the result of severe drug use (often cocaine
or crystal meth), mental illness, or other causes, results in the person being incoherent,
violent, and non-compliant. The concern is that the use of electric shocks on these
persons can cause a heart attack, although the most recent research has been unable
to establish a causal relationship between the use of Tasers and sudden in-custody
deaths. 39 While Tasers have made the police safer, the costs have been a number of
deaths in incidents where they were used. 40
The issues surrounding the use of Tasers and the extent to which the use of
Tasers may cause death are highlighted in the case of Robert Dziekanski, a Polish
immigrant who died after being Tasered at Vancouver International Airport. See
Police File 5. 3.
DEADLY ENCOUNTERS: THE POLICE USE OF LETHAL FORCE
The decision to use lethal force is the most critical one any police officer can take. The
decision is often made in a split second in circumstances involving fear, confusion,
and cognitive distortion. 41 Generally, officers are permitted to use guns only to protect
themselves or others from serious injury or to stop a fleeing felon whose escape is likely
POLICE FILE 5.3
THE DEATH OF ROBERT DZIEKANSKI
The most high-profile incident involving the police use of Tasers to
date was the death of Robert Dziekanski at the Vancouver International Airport. At 2:50 p.m. on October 13, 2007, Mr. Dziekanski, an
immigrant from Poland, arrived at the airport following a long flight
from Poland. He was fatigued from the flight and spoke no English. For
reasons that have still not been adequately explained, Mr. Dziekanski
spent nearly 12 hours wandering around the international arrivals area
without securing the assistance that would have led him to his wailing
mother. At 1:20 a.m., he became agitated and confused, his situation
made more difficult due to his limited English. The airport operations
centre received calls that a man was acting strangely, and security
personnel and RCMP officers were called. Four RCMP officers arrived
on the scene and, within minutes, had Tasered Mr. Dziekanski a total of
five times. He was restrained by the officers and died shortly thereafter
of a heart attack. An autopsy revealed that there were no drugs or
alcohol in Dziekanski 's system.
The encounter was captured on a cellphone camera by a passenger in the terminal. See the video, "Vancouver Airport - Robert
Dziekanski's Taser Death," in Media Links section at the end of the
chapter. The RCMP originally stated that Dziekanski had been Tasered
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Part II: The Police
twice, although the video indicated that he had been Tasered a total of
five limes. The provincial government subsequently launched a public
inquiry headed by a retired judge, Thomas Braidwood. The inquiry
focused on how police use Tasers and, in the second phase of the
inquiry, examined all of the circumstances surrounding the death of
Mr. Dziekanski. On numerous occasions during the hearing, the four
RCMP officers involved in the incident, and their superior officers,
provided conflicting testimony.
Among the findings of the inquiry were that the responding officers
did not make any reasonable attempt to de-escalate the situation,
that the use of the Taser against Mr. Dziekanski had been premature
and inappropriate, and that the four officers involved in the incident
had given conflicting testimony to the inquiry that was not credible. a
The officers were subsequently charged with perjury for lying to the
commission and two of the officers were convicted. In 2017, one of
the officers filed an appeal of his perjury conviction with the Supreme
Court of Canada.
• T.R. Braidwood (Commissioner). 2010. WHY? The Robert Dziekanski Tragedy.
Braidwood Commission on the Death of Robert Dziekanski. Victoria: Attorney General of
British Columbia. https://www2.gov.bc.ca/assets/gov/law-crime-and-justice/about-bc
-justice-system/inquiries/braidwoodphase2report.pdf.
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to result in serious injury or death. The police use of lethal force is a rare occurrence
within Canada, averaging less than 10 cases per year nationwide, as compared to the
approximately 300 persons who are shot and killed by U.S. police officers every year. 42
In the majority of police shootings that result in fatalities, the deceased had just
committed a serious criminal offence. In some incidents, the deceased was wanted by
the police for a serious criminal offence such as murder, attempted murder, robbery,
aggravated assault, or drug trafficking.
There are also shooting incidents that are victim-precipitated homicides, or suicide by cop
wherein the victim is the precipitator of the incident. Often these incidents involve despondent individuals who are suffering from suicidal tendencies, mental illness, or e>,.treme substance abuse, and act in a manner calculated to force police to use lethal force .43
THEUSEOFFORCEANDPERSONS
WITH MENTAL ILLNESS (PWMI)
As noted in Chapter 6, police officers are increasingly being called to incidents involving
persons with mental illness (PwMI). While the number of police-involved shootings
per capita in Canada has remained fairly constant over the past decade, the percentage
of cases involving PwMI has increased and now account for approximately 40 percent
of the persons killed by police officers. 44 View the documentary film, "Hold Your Fire,"
listed in the Media Links section at the end of the chapter. For accounts of the impact
of the death of a mentally ill relative in an encounter with the police, see the video link,
"When Police Kill," in the Media Links section at the end of the chapter.
The shooting death of Sammy Yatim in an encounter with Toronto police in 2013
was a high-profile incident in which lethal force was used against a mentally ill man .
See Police File 5.4.
POLICE FILE 5.4
THE TORONTO STREETCAR SHOOTING: THE DEATH OF SAMMY YATIM
Torontonians protest the fatal shooting of Sammy Yatim
and set up a memorial on the spot where he was killed in
a streetcar.
On July 27, 2013, Toronto police responded to a call about a disruptive
passenger on a streetcar. The man had wielded a knife and ordered
everyone off of the streetcar. Witnesses would later say that he appeared to be unstable. Police officers surrounded the streetcar. Sammy
Yatim, an 18-year-old with a history of mental illness, was subsequently shot nine times by Constable James Forcillo, a six-year member of
the Toronto Police Service. A total of 22 police officers were present
at the scene. He was then Tasered prior to being taken to hospital
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where he was pronounced dead. The Ontario Special Investigations
Unit assumed control of the investigation and subsequently charged
Constable Forcillo with murder.a
In 2016, Forcillo was convicted of attempted murder and sentenced to six years in prison.b Read the decision of the court in Her
Majesty the Queen v. James Forcillo at https://www.scribd.com
/document/319558302/Forcillo-decision#from_embed. Note that the
judge sentenced Forcillo to a year longer than the mandatory minimum
of five years, holding the constable to a higher standard than regular
citizens due to his position of trust.
The shooting sparked outrage in the community and a review of
police use-of-force practice. This incident prompted an external review
of the police use of force in the Toronto Police Service, with a specific
focus on police encounters with the mentally ill.
• K.B. Carlson. 2013, August 19. "Toronto Police Officer Charged in Sammy Yatim Shooting
to Tum Himself in Tuesday," Globe and Mail. https://www.theglobeandmail.com/news
/toronto/ontario-police-watchdog-lays-second-degree-murder-charge-in-sammy-yatim
-shooting/article13837354.
b A. Hasham. 2016, July 28. "Const. James Forcillo Sentenced to 6 Years in Sammy
Yatim Shooting," Toronto Star. https://www.thestar.com/news/crime/2016/07/28/
const-james-forcillo-sammy-yatim-shooting-sentence.html.
CHAPTER 5: Police Powers and Decision-Making
115
Despite tragedies such as the shooting death of Sammy Yatim, in an overwhelming
number of cases, police officers successfully resolve incidents involving PwMI. Nor
does it appear that PwMI are subject to any higher levels of use of force than mentally
stable suspects. 45 However, this incident and several others accelerated the debate over
equipping police officers with body-worn video cameras. See At Issue 5.2.
AT ISSUE 5.2
SHOULD ALL POLICE OFFICERS BE EQUIPPED WITH BODY-WORN CAMERAS?
I
.
-
...
,.
i
Pru-.
va.,\.r._.1:
Toronto Police Service officer with body-worn camera
A number of Canadian police services have equipped their officers
with body-worn cameras (BWC). This technology has the potential to
capture what the police officer is seeing, doing, and saying during an
encounter. Proponents of BWCs argue that, among other potential
benefits of BMCs, they increase the transparency of police operations
and the accountability of police officers; provide an accurate record
of police-citizen encounters, which can, in turn, reduce complaints
against the police (and associated civil suits); reduce false accusations; and provide a more complete recording of police-citizen
encounters than those recorded in the officer's court notebook. a It is
also pointed out that BWCs can provide a more complete record of an
encounter than smartphones used by bystanders. In this way, BWCs
may serve to counter the selective recordings by citizens.
Among the concerns that have been expressed about BWCs are 1)
the impact of BWCs on officer decision-making in encounter situations;
2) how the presence of BWCs will affect the willingness of victims and
witnesses to speak with the police; 3) the impact of BWCs in policecitizen encounters in diverse communities, including Indigenous communities; 4) the response of the general public; 5) issues related to privacy legislation and the Charter; and 6) the costs of equipping officers
with BWCs and maintaining the technology. As well, this technology
does not record how the officer perceives what they are seeing as they
enter an encounter situation and how this information is being cognitively processed. View the documentary film, "Police Shootings: Caught
on Camera," listed in the Media Links section at the end of the chapter.
The findings from studies of BWCs have been mixed and observers
have cautioned that BWCs are not a "fix-all. "b Some have found that
the presence of BWCs reduces assaults on police officers and the
number of complaints filed against the police, while other studies
have found no such impact. Public opinion on BWCs and the views of
officers about BWCs has been found to be varied.c Although the public
is generally familiar with BWCs, some studies have found that their
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Part II: The Police
presence may not improve police-community relationships, particularly between police and minority groups.d Officers participating in the
study of BWCs in the Edmonton Police Service expressed concerns
that BWCs would make them more "robotic" and "less effective in
creating rapport. "e There were also concerns that BWCs would cause
officers to "hesitate to use appropriate levels of force. "1A study in the
UK found that rates of assault against the police who were wearing
body-worn cameras increased, an outcome that was ascribed to
officers being less assertive and being more vulnerable to assault.g
From their study, one group of researchers concluded, "BWCs are not
a simple 'plug and play' policy solution; significant variations across
officers and circumstances affect the potential benefits of BWCs:•h
Acquiring and equipping officers with BWCs and storing and retrieving
video footage is expensive and a primary reason why many Canadian police
services have not adopted this technology. The Calgary Police Service, for
example, one of the early adopters of BWCs, has abandoned their use.
QUESTIONS
1. In your view, should all police officers be equipped with BWCs?
2. What arguments in support of them-and what concerns-do you
have?
• National Institute of Justice. 2012. A Primer on Body-Worn Cameras for Law
Enforcement, Washington, DC: U.S. Department of Justice. https://www.justnet.org/
pdf/OO-Body-Worn-Cameras-508.pdf.
b A. Bawany. 2015. "Survey: Police Body Cameras Aren't a Fix-All" [news release],
University of Nevada, Las Vegas. https://www.unlv.edu/news/release/unlv-criminaljustice-survey-gauges-public-opinion-body-cameras-police-officers.
cT.1.C. Cubit!, R. Lesic, G.L. Myers, and R. Corry. 2017. "Body-Worn Video: A Systematic
Review of the Literature," Australian and New Zealand Journal of Criminology, 5~3),
379-396.
d D. McClure, N. La Vigne, M. Lynch, and L. Golian. 2017. How Body Cameras Affect
Community Members' Perceptions of Police: Results from a Randomized Controlled
Trial of One Agency's Pilot. New York: Urban Institute. https://www.urban.org/sites/
default/files/publication/91331 /2001307 -how-body-cameras-affect-communitymembers-perceptions-of-police_1.pdf.
• Edmonton Police Service. 2015. Body Worn Video: Considering the Evidence. Final
Report of the Edmonton Police Service Body Worn Video Project. Edmonton: Author,
p. 7. http://www.bwvsg.com/wp-content/uploads/2015/06/Edmonton-Police-BWV
-Final-Report.pd!.
1 Ibid.
g RAND. 2016, May 17. "Body-Worn Cameras Associated with Increased Assaults
Against Police, and Increase Use-of-Force If Officers Choose When to Turn on BodyWorn Cameras" [news release]. https://www.rand.org/news/press/2016/05/17.html.
h McClure. La Vigne, Lynch, and Golian, How Body Cameras Affect Community
Members' Perceptions of Police, p. 9.
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POLICE POWERS IN INVESTIGATIONS
Police powers in investigations are continually being defined, and re-defined, by the
courts. The following discussion provides an overview of several of the areas where
police conduct in case investigations has been called into question by the courts.
Illustrative of the issues that surround police powers in case investigations is the issue
of the right of suspects to remain silent when interrogated by the police, the controversy that surrounds the use of the Mr. Big strategy, the investigative practice known as
blood-letting, and the use of high-tech surveillance devices .
ENTRAPMENT: A MISUSE OF POLICE POWERS
Entrapment means just what it sounds like: A person ends up committing an offence
that he or she would not otherwise have committed, largely as a result of pressure or
cunning on the part of the police. In these situations, the police are most often operating undercover. The following are controversial examples of police practice:
• An expensive car is left with the keys in the ignition, observed by concealed officers
waiting to arrest anyone who steals it.
• A police officer poses as a young girl while trolling websites frequented by pedophiles.
• An undercover officer poses as an intoxicated subway passenger, wearing expensive jewellery and a Rolex watch. Anyone who mugs him is arrested .
• An undercover officer poses as a potential client to arrest a prostitute who offers sexual
services.
Proactive techniques like these can be an effective and cost-efficient use of personnel.
They can help prevent crime in "victimless" offences (such as prostitution and drug
possession) of the sort that are unlikely to generate citizen complaints. The controversy
sterns from the fact that there is a line between catching those habitually involved in
lawbreaking and creating situational criminals. The concern is that in some situations,
typically law-abiding people could be enticed into committing a crime.
The courts have determined that the line is crossed when a person is persistently
harassed into committing an offence that he or she would not have committed had it
not been for the actions of the police. People cannot be targeted at random. Rather,
there should be a reasonable suspicion tl1at tl1e person is already engaged in criminal
activity. For example, in the prostitution example above, tl1e actions of the police do not
constitute entrapment because such a reasonable suspicion exists. One of the landmark
cases on entrapment is R. v. Mack ([ 1988] 2 SCR 903 ), presented in Legal File 5.1.
Canadian courts have generally not allowed the defence of entrapment, which
requires tl1ere to have been a clear abuse of process. In R. v. Pearson ([ 1998] 3 SCR
620), the SCC made a clear distinction between the issue of entrapment and innocence: "Entrapment is completely separate from the issue of guilt or innocence. It is
concerned with the conduct of the police and is dealt witl1 at a separate proceeding
from the trial on the merits" (see also R. v. Campbell, [1998] 3 SCR 533).
THE "MR. BIG" TECHNIQUE: A CONTROVERSIAL
INVESTIGATIVE STRATEGY
Mr. Big technique
An investigative strategy designed to
secure confessions from crime suspects
through the creation of an elaborate
scenario.
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A particularly controversial police investigation technique that has also raised issues
about police powers is known as tl1e Mr. Big technique. This involves police undercover officers making contact with crime suspects who are subsequently introduced to
"Mr. Big," a purported organized crime boss. The target(s) are then invited to join the
CHAPT ER 5: Police Powers and Decision-Making
117
LEGAL FILE 5.1
R. V. MACK: THE CASE OF THE RELUCTANT DRUG TRAFFICKER
The defendant was charged with drug trafficking. At the close of his defence, he brought an application for a stay of proceedings on the basis of entrapment. His testimony indicated that he had
persistently refused the approaches of a police informer over the course of six months and that he
was only persuaded to sell him drugs because of the informer's persistence, his use of threats, and
the inducement of a large amount of money. He also testified that he had previously been addicted
to drugs but that he had given up his use of narcotics. The application for a stay of proceedings was
refused, and he was convicted of drug trafficking. The Court of Appeal dismissed an appeal from
that conviction .
The central issue for the Supreme Court of Canada was whether the defendant had been
entrapped into committing the offence of drug trafficking. The court held that the police in this
case were not interrupting an ongoing criminal enterprise; the offence was clearly brought about
by their conduct and would not have occurred without their involvement. The court stated that
the persistence of the police requests and the equally persistent refusals, and the length of time
needed to secure the defendant's participation in the offence, indicated that the police had tried
to make the appellant take up his former lifestyle and had gone further than merely providing him
with the opportunity.
For the court, the most important and determinative factor was that the defendant had been
threatened and had been told to get his act together when he did not provide the requested drugs.
This conduct was unacceptable and went beyond providing the appellant with an opportunity. The
court found that the average person in the appellant's position might also have committed the
offence, if only to finally satisfy this threatening informer and end all further contact. The court
ruled that the trial judge should have entered a stay of proceedings.
Source: R. v. Mack, [1988] 2 SCA 903. Canadian Legal Information Institute. http://www.canlii.org/ca/cas/scc/1988/
1988scc100.html.
crime group, but only if they admit to having committed a major crime. The strategy is
prohibited in the U.S . and Europe, where it is considered to be entrapment, although
Canadian courts have ruled that the police may engage in deception to catch criminals.
Proponents of the technique cite figures indicating that the technique has a 75 percent confession rate and a 95 percent conviction rate and has proven to be very effective
in apprehending offenders who would have otherwise not been charged and convicted .
Critics argue, however, that the practice raises legal, moral , and ethical issues. 46
Suspects who are questioned about crim es in a Mr. Big scenario enjoy none of the legal
safeguards of those who are interrogated in a "custodial" setting. 47 There are concerns
that Mr. Big stings are really dirty tricks that lead to false confessions and the conviction
of innocent persons who have confessed to police in a Mr. Big operation and were later
exonerated by DNA evidence. 48
Historically, the courts had ruled that the police could engage in deception to apprehend
criminals, and this included the Mr. Big strategy. However, in a ruling in 2014 (R. v. Hart,
2014 SCC 52), the SCC placed restrictions on the admissibility of evidence, including
suspect confessions, garnered through the use of the Mr. Big technique. See Legal File 5.2.
SEARCH AND SEIZURE
The power of the police to search people and places and to seize evidence also illustrates the fine balance that must be maintained between protecting public order and
ensuring the rights of citizens. Historically, under the common law, the manner in
which evidence was gathered did not affect its admissibility in a criminal trial. That all
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Part II: The Police
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LEGAL FILE 5.2
R. V. HART: LIMITING THE USE OF THE MR. BIG TECHNIQUE
Mr. Hart, who has a Grade 5 level of education and was on social
assistance, was the prime suspect in the drowning deaths of his
twin daughters in Newfoundland in 2002. In 2005, the RCMP spent
over $400,000 to construct an elaborate Mr. Big operation, wherein
officers posed as gangsters and recruited Hart to join their crime
network. Mr. Hart participated in activities, including moving what he
thought was stolen property. In addition to being wined and dined
at restaurants and casinos, he was paid nearly $16,000. To remain
part of the gang, Mr. Hart was required to "confess" to any previous
crimes. The court concluded that the scenario required Mr. Hart to
confess to a crime.
On the basis of his "confession," Hart was found guilty of firstdegree murder and received a life sentence with no possibility of
parole for 25 years. In 2012, the Newfoundland Court of Appeal
overturned the conviction, finding that the lengths to which the RCMP
went in the Mr. Big operation violated Mr. Hart's rights and that the
tactics were excessive and unjust. The sec agreed, noting that
Mr. Hart had been subjected to physical and psychological harm. At
the time of the sec decision, Hart had served nine years in prison.
In its decision, the sec ruled that confessions obtained via the
Mr. Big strategy rely on coercion, threats, and financial inducements and
should be presumed to be inadmissible in court. However, the court left
open the possibility that evidence gathered from Mr. Big stings could be
admitted in court if the prosecutors are able to convince the presiding
judge that the reliability of the evidence outweighs any prejudicial effects
of the strategy. This will require the police and prosecutors to gather
corroborating evidence to support the suspect's confession.a The courts
continue to examine the use of the Mr. Big strategy in criminal investigations. See Critical Thinking Exercise 5.1 at the end of the chapter.
• T. Riddell and K. Puddister. 2014, August 6. "Who's in Charge of Mr. Big?" National
Post. http://nationalpost.com/opinion/ri~Jell-puddister-whos-in-charge-of-mr-big.
Additional sources: S. Woods. 2014, September 18. "A New Standard for 'Mr. Big'
Confessions: Rv Hart," T/JeCourt.ca. httpJ/www.thecourt.ca/a-new-standard-for
-mr-big-confessions-r-v-hart; R. v. Hart, 2014 sec 52.
changed with the Charter, Section 8 of which protects all citizens against "unreasonable" search or seizure. Evidence obtained during an illegal search may be excluded
from trial if, as indicated in Section 24 of the Charter, its use would bring the justice
system into disrepute.
The Supreme Court of Canada has held in R. v. S.A.B. (2003 SCC 60) that for a search
to be reasonable, (a) it must be authorized by law, (b) the law itself must be reasonable,
and (c) the manner in which the search was carried out must be reasonable. This is illustrated in the case ofR. v. Harrison (2009 SCC 34), presented in Legal File 5.3.
LEGAL FILE 5.3
R. V. HARRISON: A CASE OF AN ILLEGAL SEARCH
On October 24, 2004, an Ontario Provincial Police officer pulled over
a vehicle van near Kirkland, Ontario. The vehicle had been rented
two days earlier at Vancouver International Airport. The officer had
stopped the vehicle because it was missing the front licence plate,
but quickly realized that it was registered in Alberta and was not required to have one. The officer then asked Mr. Harrison for his driver's
licence, and Mr. Harrison indicated that he couldn't find it. The officer
conducted a computer search and discovered that Mr. Harrison's
licence had been suspended. Mr. Harrison was arrested for driving
while his licence was suspended.
At trial, the officer stated to the court that he then searched the
vehicle in the hope of finding the lost licence, although Mr. Harrison
had already been arrested for driving while suspended. During the
search of the vehicle, the officer found $4 million worth of cocaine. At
trial, Mr. Harrison was found guilty, even though the trial judge stated
that there had been a "brazen and flagrant" disregard for his rights
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not to be subjected to arbitrary detention and unreasonable search
and seizure. The appeal court agreed that the tactics, while violating
Mr. Harrison's rights, were mitigated by the value of the evidence
obtained by the officer in the search. The sec disagreed with both of
these courts and acquitted Mr. Harrison, the chief justice of the sec
noting in the decision that the violations of Mr. Harrison's rights were
far from being technical or trivial.
QUESTIONS
1. Do you agree with the decision of the Supreme Court in this
case?
2. Does this decision place too many restrictions on the powers of
the police?
3. What if the officers had found a handgun rather than cocaine?
Sources: Canadian Press. 2009, July 17. "Top Court Throws Out $4M Seizure after
Illegal Search," CTV News. httpJ/www.ctvnews.ca/top-court-throws-out-4m-seizure
-after-illegal-search-1.417622; R. v. Harrison, 2009 sec 34.
CHAPTER 5: Police Powers and Decision-Making
119
There is considerable room for interpretation by the courts as to what constitutes
an unreasonable search in any particular case and when admission of evidence would
bring the administration of justice into disrepute. Since the passage of the Charter in
1982, there have been hundreds of court cases and numerous books and legal articles
dealing with this issue; the same two decades have seen an ongoing debate abou t what
constitutes a reasonable search. As a result, conditions and requirements have emerged
regarding prior authorization for a search.
Generall y, for a search by the police to be lawful, a search warrant must be issued.
The Supreme Court of Canada has decided that warrants are required in the following situations:
• where there is to be secret recording of conversations by state agents
Search warrant
A document that permits the police to
search a specific location and take items
that might be evidence of a crime.
• in cases involving video surveillance
• fo r perimeter searches of residential premises
• before the installation of tracking devices to monitor people's movements
Search warrants are generally issued by a justice of the peace (JP). Before a warrant
can be issued, an information must be sworn under oath before a JP to convince him or
her that there are reasonable and probable grounds that there is, in a building or place,
(l) evidence relating to an act in violation of the Criminal Code or other federal statute,
(2) evidence that might exist in relation to such a violation, or (3) evidence intended to
be used to commit an offence against a person for which an individual may be arrested
withou t a warrant.
The following scenario illustrates the principle of reasonable and probable grounds.
Your neighbours feel that you match the description of a crime suspect in a bank robbery re-enacted on a televised Crime Stopper program . They telephone the police and
anonymously provide yo ur name and address. Can this tip be used to establish reasonable and probable grounds for a sea rch of your home? The answer is no . Although a
possible starting point for a police investigation, anonymous tips do not provide reasonable and probable grounds. A concern in establish ing reasonable and probable grounds
is the source of the information, the credibility of which is likely to be questioned if it
1s anonymous.
A search without a warrant will generally be illegal , except in two types of situations:
1. While arresting a person, the officer may search the person· and the immediate surround-
ings for self-protection (that is, to seize weapons), to prevent the destruction of evidence
(for example, to stop the person from swallowing drugs), or for means of escape.
2. In an emergency situation where an officer believes that an offence is being, or is likely
to be, committed, or that someone in the premises is in danger of injury, a premise
may be entered . In R. v. Godoy (( 1999] I SCR 311), for example, the Supreme Court
of Canada held that the forced entry of police officers into a residence from which a
disconnected 91 I call had been made, and the subsequent arrest of a suspect who had
physically abused his common-law partner, was justifiable.
Ultimately it is the courts that decide whether a search warrant has been properly
obtained and executed or whether a wa rrantless search was legal.
The passage in 200 l of Bill C-36, tl1e Anti-terrorism Act, expanded the authority of
tl1e police to search property associated with terrorist groups and/or activity.
THE POWER TO DETAIN AND ARREST
When most people think of police powers, they tl1ink automatically of arrest. Over the
years, considerable confusion has surrounded the process of arrest. Many citizens do
120
Part II: The Police
--------~-- - - - - - - - - -
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not know when the police have the right to make an arrest, nor do they know
what their rights are in an arrest situation.
The power to arrest is provided by the Criminal Code and other federal statutes as well as by provincial legislation such as motor vehicle statutes. An arrest
can be made to prevent a crime from being committed, to terminate a breach of
the peace, or to compel an accused person to attend trial.
• Police officers use force to make an arrest.
Arrest warrant
A document that permits a police officer
to arrest a specific person for a specified
reason.
Information
A written statement sworn by an informant, normally a police officer, alleging
that a person has committed a specific
criminal offence.
A portion of the Charter-based warning read by police officers in independent
municipal police services in British Columbia is reproduced in Police File 5.4.
ote that the specific wording of this communication of Charter rights may vary
from police service to police service depending on the jurisdiction.
A formal "arrest" triggers certain requirements on the part of the police-for example
to advise the suspect of the reason for the arrest, of the right to counsel, of the right to
remain silent, and so on. That said, most persons are released shortly thereafter on an
Appearance otice, an Undertaking to Appear, or a Summons to appear in court at a
future date. TI1ese notices are issued because the person meets the "public interest"
requirements of tl1e Bail Refom1 Act-that is, the seriousness of the offence; identity is
established; there is no concern of a continuation of the offence, of a failure to appear
in court, or for destruction of evidence. A criminal suspect who is placed into custody
will generally be released as soon as possible, on the authority of the arresting officer,
the officer in charge of the police lockup, or a JP.
If an arrest is warranted, and if there is time to do so, a police officer can seek an
arrest warrant by swearing an information in front of a JP. If the JP agrees that there are
"reasonable grounds to believe that it is necessary in the public interest," a warrant will
be issued directing the local police to arrest tl1e person. Accessing a JP can pose difficulties in rural areas. Several provinces (including British Columbia, Ontario, Manitoba,
and Alberta) have developed telewarrant programs that provide 24-hour access to JPs.
POLICE FILE 5.4
COMMUNICATING CHARTER RIGHTS UPON ARREST OR DETENTION
Sec. 1O(a) I am arresting/detaining you for _ _ _ __
(State reason for arrest/detention, including the offence
and provide known information about the offence, including
date and place .)
Sec. 1O(b) It is my duty to inform you that you have the
right to retain and instruct counsel in private without delay.
You may call any lawyer you want.
There is a 24-hour telephone service available which provides a legal aid duty lawyer who can give you legal advice
in private. This advice is given without charge and the
lawyer can explain the legal aid plan to you.
If you wish to contact a legal aid lawyer I can provide you
with a telephone number.
Do you understand?
Do you want to call a lawyer?
Supplementary Charter Warning: (If an arrested or
detained person initially indicated that he or she wished to
contact legal counsel and then subsequently indicates that
he or she no longer wishes to exercise the right to counsel,
read the following additional charter warning.)
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You have the right to a reasonable opportunity to contact
counsel. I am not obliged to take a statement from you or
ask you to participate in any process which could provide
incriminating evidence until you are certain about whether
you want to exercise this right.
Do you understand?
What do you wish to do?
Secondary Warning: (Name), you are detained with
respect to (reason for detainment). If you have spoken to
any police officer (including myse1n with respect to this
matter, who has offered to you any hope of advantage or
suggested any fear of prejudice should you speak or refuse
to speak with me (us) at this time, it is my duty to warn you
that no such offer or suggestion can be of any effect and
must not influence you or make you feel compelled to say
anything to me (us) for any reason, but anything you do say
may be used in evidence.
Source: Copyright © Province of British Columbia. All rights reserved. Reprinted with
the permission of the Province of British Columbia.
CHAPTER 5: Police Powers and Decision-Making
121
Police officers can apply for and receive warrants by fax or telephone instead of having
to appear in person before a JP.
In Ontario, for example, the Telewarrant Centre is located in the Central East
Region and operates 24 hours per day, 7 days per week. A justice of the peace assigned
to the centre will consider search warrants and other emergency applications by law
enforcement agencies around the province.
Sometimes the police must act quickly and have no time to secure a warrant
from a JP. Police officers can arrest a suspect without an arrest warrant in the following circumstances:
• They have caught a person in the act of committing an offence.
• They believe, on reasonable grounds, that a person has committed an indictable offence.
• They believe, on reasonable grounds, that a person is about to commit an indictable
offence.
Two additional conditions apply to making an arrest. First, the officer must not make
an arrest if he or she has "no reasonable grounds" to believe that the person will fail to
appear in court. Second, the officer must believe on "reasonable grounds" that an arrest
is "necessary in the public interest." Th is is defined specifically as the need to
• establish the identity of the person;
• secure or preserve evidence of or relating to the offence; and/or
• prevent the continuation or repetition of the offence or the commission of another
offence.
However, provisions in the Anti-terrorism Act give the police the power of preventative arrest. This allows them to arrest persons without a warrant on "reasonable suspicion" (rather than the standard "reasonable grounds") if it is believed that the arrest will
prevent a terrorist activity. The person need not have committed any crime and can be
detained for up to 72 hours.
In practice, arrests are usually made only in the case of indictable offences. For minor
crimes (summary conviction offences), an arrest is legal only if the police find someone
actually committing the offence or if there is an outstanding arrest warrant or warrant of
committal (a document issued by a judge directing prison authorities to accept a person
into custody upon sentencing, a bench warrant for failure to appear at a court process,
or a document issued by a parole board to revoke an offender's conditional release).
An officer who makes an arrest without reasonable grounds risks being sued civilly for
assault or false imprisonment. Moreover, a person who resists an unlawful arrest is not
guilty of resisting a police officer in the execution of their duty.
There is a distinction between arrest and detention. The SCC has held that a detention occurs when a police officer "assumes control over the movement of a person by a
demand or direction that may have significant legal consequence and that prevents or
impedes access to [legal] counsel" (R. v. Schmautz, [1990] 1 SCR 398). In contrast, the
primary purpose of an arrest is to compel an accused to appear at trial.
Whether the person has been arrested or detained, an important threshold in the
criminal process has been crossed. According to section 10 of the Charter, anyone who
has been arrested or detained has the right to be informed promptly of the reason for
the arrest or detention. That person also has the right to retain and instruct counsel
without delay, and furthermore, must be told about that right without delay. However,
the suspect can choose to exercise that right or not. Also, a suspect who is interviewed by
Canadian police officers in tl1e United States must be informed of the right to counsel
(R. v. Cook, [1998] 2 SCR 597).
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Suspects have a right to retain counsel but do not have an absolute right to nave u,a,
counsel paid for by the state. Moreover, section 10 of the Charter does not impose a
duty on provincial governments to provide free legal representation to everyone who
cannot afford it. In many provinces, free preliminary legal advice is available through a
toll-free number on a 24-hour basis. When an arrested or detained person does not have
or know a lawyer, police must inform that person of this number and hold off on further
questioning to give the suspect an opportunity to access this advice. After that, however,
to get free legal representation, the suspect must qualify for legal aid (see Chapter 7).
The failure of police to advise a person in a timely manner of the right to counsel upon
arrest is an infringement of their Charter rights.
THE RIGHT OF SUSPECTS TO REMAIN SILENT
Under Canadian law, police officers have no formal powers to compel crime suspects to
answer their questions. Suspects have a right to remain silent, and police officers must
inform them of that right. They must also inform suspects that any statements they do
make may be used against them in a criminal trial.
There are some exceptions to this. The right to remain silent does not extend to
situations where it would permit a citizen to obstruct a police officer from carrying out
his or her duties. For example, if you ride your bike through a red light and a police
officer wants to issue you a traffic citation, you must produce identification. (And, in
practice, remaining silent may only make things worse: A person who refuses to answer
some general questions asked by the officer may raise suspicions that result in an arrest.)
Police officers must also inform suspects that any statements they do make may be used
against them in a crim inal trial.
The courts have ~!so taken a dim view of the use of trickery by police to obtain confessions. The classic case is when an undercover police officer is placed in a cell with a
crime suspect and then attempts to encourage the suspect to make incriminating statements . The Supreme Court of Canada has held that there are strict limits on the extent
to which police can use this tactic to obtain a confession from a suspect who has refused
to make a formal statement to the police. Voluntary statements made by a suspect to a
cell mate (who may be an undercover pol ice officer) may not violate the suspect's right
to remain silent and may be admissible at trial if such admission does not bring th e
administration of justice into disrepute. Suspects who have low levels of intelligence or
other impairment may not understand their right to silence and its implications.
False confessions may also be made by persons who are mentally ill , stressed and
fatigued , and who are experiencing withdrawal symptoms from drugs or alcohol. 49
In addition, it has been recognized that Indigenous suspects may be particularly vulnerable to provide misleading information, to acquiesce to police suggestions, or to
falsely confess. 50 This is due to a number of factors, including their background and
circumstance, a lack of understanding of their legal rights, and challenges in language
and comprehension, among others. 51 This imposes on the police the obligation to
take special precautions in interviewing Indigenous suspects, including ensuring that
they understand their rights and communicating in a clear and unambiguous manner
with suspects.
Although false confessions are rare, investigating officers must always carefully assess
the reliability of a suspect's statement or confession against all other known facts. False
confessions may also be made by persons who are mentally ill, stressed, and fatigued ,
and who are experiencing withdrawal symptoms from drugs or alcohol. 52 This, in turn,
may lead to a person being wrongfully convicted, discussed in Chapter 8.
NEL
CHAPTER 5: Police Powers and Decision-Making
123
t'ULICE OFFICER MISCONDUCT
Although Canadians generally hold positive attitudes toward the police, incidents do
occur as a result of which citizens take issue with police attitudes and behaviour or
their failure to take action and exercise their discretion appropriately. Canadian courts
have established that police officers are held to a higher standard of conduct than ordinary citizens.
Police misconduct ranges from unprofessional conduct to murder. Police officers may
be held liable for violating the policies and procedures of the police service in which
they work and are also liable, civilly and criminally, for their conduct. A review of RCMP
complaints made between January I, 2010, and October 9, 2015, found a range of
alleged misconduct, from cheating on a scorecard in a charity golf tournament, to lying
under oath, to engaging in a high-speed chase that resulted in the death of a pedestrian.53
The sanctions imposed on officers can range from a verbal or written reprimand,
forfeiture of pay, suspension from the police service with or without pay, recommendations for counselling, or a directive that the officer resign . Officers may also resign
voluntarily at any point prior to or during the proceedings. This is in addition to any
charges that may be filed in civil or criminal court.
Historically, people in the community who had complaints about the behaviour
of police officers were required to file their grievances with the officers' department,
which then conducted an investigation. This was an intimidating process and probably
deterred many potential complainants.
Today, police activities are overseen by a number of commissions, boards, and agencies established under provisions in provincial police acts. In Ontario, the Office of
the Independent Police Review Director (OIPRD) is an agency staffed with civilians
that receives and investigates complaints against police officers. In addition, there
are units within police services that investigate alleged misconduct by officers. The
Special Investigations Unit (SIU) in Ontario, the Alberta Serious Incident Response
Team (ASIRT), and the Independent Investigations Office (IIO) in British Columbia
are examples of outside civilian agencies that investigate cases involving serious injury,
sexual assault, or death that may have been the result of criminal offences committed
by police officers.
A review of the OIPRD, the Special Investigations Unit that investigates policecitizen incidents that result in serious injury or death, and the Ontario Civilian Police
Commission, which is involved in the adjudication of appeals from police disciplinary
hearings, found a number of deficiencies with respect to the transparency and accountability of these bodies. As well, the report expressed concerns about the exclusion of
officers in autonomous Indigenous police services from civilian oversight and the experience of Indigenous persons with police oversight. Among the barriers to accessing
the oversight bodies were a lack of knowledge of their existence and mandate, a fear
of retaliation from officers should a complaint be filed, and the view that filing a complaint would be pointless. 54
COMPLAINTS AGAINST THE POLICE
The most frequent complaints against police officers involve abuses of authority, the
attitudes of officers, and tl1e quality of service provided. Less frequent are complaints
for very serious charges, including excessive use of force and death . The vast majority of
complaints are resolved informally at the department or detachment level and are not
forwarded to a complaints commissions. See Figure 5.3.
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a. Number of Complaints Received
b. Sub-classification of Alleged Misconduct
5-Year Avg.
2016
2015
2014
2013
Unlawful or -Unnecessary
Exercise of
Authority
10.0%
2012
0
100
200
300
400
500
600
700
800
900
1000
• Policy/Service
• Conduct-serious
• Conduct-less serious • Not investigated
c. Discreditable Conduct Allegations
d. Disposition of Investigated Complaints
Policy/Service:
language re:
another service
member
0.6%
FIGURE 5.3 •
Misconduct among Toronto
Police Officers, 2016
Question: What do the statistics in the figures
suggest about public complaints against the
police in a large urban police service?
Source: Toronto Police Service. 2016. Corporate
Risk Management Annual Report, 2016.
Toronto: Author, pp. 24--26, 29. http://www
.torontopolice.on.ca/publications/files/reports/
crm2016annualreport.pdf. Reprinted by
permission of the Toronto Police Service.
NEL
A review of Figure 5.3 indicates that "Discreditable Conduct" is the most frequent complaint, with the most common behaviour being "Acts in a Disorderly Manner." Complaints
are most often made against officers with less than one to five yea rs' experience. ote
that 4.8 percent of the complaints were for alleged "Discrimination." Police constables
accounted for the majority (8 1.2 percent) of the complaints, which is understandable
given that these officers have the highest level of contact with community residents. 55
Up to 50 percent of the formal complaints filed against the police are later determined, upon investigation, to be unsubstantiated. Many more are resolved informally,
often by mediation between the officers involved and the complainant. In 2015-16,
for example, the Office of the Public Complaint Commissioner (OPPC) in British
Columbia concluded 777 complaint files. The files were concluded in the following
manner: Withdrawn ( 13 percent); Discontinued ( 11 percent); Informally Resolved/
Mediated (19 percent); Substantiated (6 percent); and Unsubstantiated (52 percent).56
Police File 5.5 presents a brief summary of two cases in wh ich police services in
British Columbia asked the OPPC to investigate the behaviour of officers. The charges
against the officers are noted, as well as the discipline received by the officers.
CHAPTER 5: Police Powers and Decision-Making
125
POLICE FILE 5.5
INVESTIGATIONS REQUESTED BY THE DEPARTMENT: TWO CASE
STUDIES OF POLICE OFFICER BEHAVIOUR AND DISCIPLINE
(r.e 1 OUb:oml
I
The police officer, while off-duty, was
removed from a nightclub for being
intoxicated. In an attempt to regain entry,
the officer identified himself/herself as an
"undercover officer."
I case 2 Outcome
'
1. A police officer arrested a male
without sufficient grounds.
2. The officer used excessive force
during the course of the arrest.
1
Misconduct: Discreditable Conduct
Discipline: Written reprimand; one-day
suspension; further training to assist the
member in assessing his/her behaviours.
I
Misconduct 1: Abuse of Authority (x 2)
Discipline: Two-day suspension; retraining in the
powers of arrest and detention, the Controlled
Drugs and Substances Act, and use of force;
directed to issue a letter of apology to the subject
male and the officer's police partner.
Source: BC Office of the Police Complaint Commissioner. 2016. Annual Report, 2015-2016. Vancouver: Author, pp. 38, 40.
https://opcc.bc.ca/wp-contenVuploads/2017/04/2015-2016_0PCC_Annual_Report.pdf. Reprinted by permission of the
BC Office of the Police Complaints Commissioner.
THE RELUCTANCE TO FILE A COMPLAINT
D espite the procedures that are in place for citizens to file complaints against the police,
many may be reluctant to do so. This may be due to a lack of trust in the police and/or
fear of retaliation. These sentiments may be particularly prevalent among Indigenous
persons, Blacks, and persons in other racialized and minority groups. This was found
to be the case among Indigenous women and girls in Saskatchewan, particularly in
small communities. 57 These concerns are refl ected in the comments of two Indigenous
women in Saskatchewan:
Why won' t I file a complain t? I think it would make it to the shredder. And I've
heard of people doing that and then getting picked on . All of a sudden, you've got
all of them coming after you.
Karen D. described the fear that she felt after she filed a complaint against the
police, "I was scared shi tl ess when I made the complai nt. [I] feared for my life. After
what happened to eil Stonechild, how do I know they're not going to take me out." 5
A review of policing in Yukon found similar challenges that prevented Indigenous
persons using the complaint process. In citing the need for a more accessible complaint
process, the study noted that many residents were apprehens ive about filing a complaint due to fear of police reprisal, and that there was also a lack of knowledge about
the process fo r filing a complaint. 59
SUMMARY
The discussion in this chapter has focused on police powers and decision-making.
The Charter of Rights and Freedoms has had a significant impact on poli ce power ,
which are continually being defined and redefined by the courts. There are
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Part II: The Police
NEL
structures of oversight and accountability for the police. Police officers have t.v ..
siderable discretion in carrying out their tasks, and they abuse their powers when
they engage in biased policing and racial profiling. Indigenous persons, racialized persons, and members of other visible/cultural/religious minority groups are
particularly susceptible to being profiled and subjected to street checks/carding
by police .
Police officers have various less-lethal and lethal force options available to them,
and there are cases in which both types of options have resulted in deaths. Officers can
be held criminally and civilly liable for the misuse of force. The police have specific
powers with respect to search and seizure, detention, and arrest, while suspects have
certain rights to remain silent when being interrogated by the police. Entrapment is
best viewed as an abuse of police powers. The Mr. Big investigative strategy is controversial, and the SCC has placed limits on its use .
Police misconduct spans a wide range of behaviour, and there are a variety of commissions, boards, and agencies that are responsible for overseeing and investigating
alleged misbehaviour by police.
KEY POINTS REVIEW
1. The Canadian Charter of Rights and Freedoms has had a significant impact in defining
the powers of the police.
2. Discretion is an essential component of policing, and the authority to use discretion is
set out in statutes such as the Criminal Code.
3. Biased policing and racial profiling occur when police officers abuse their discretionary
authority.
4. The study of biased policing and racial profiling requires a consideration of the lived
experiences of persons in minority groups.
5. The issues surrounding racial profiling are illustrated by the ongoing controversy over
street checks/carding.
6. Research studies and the courts have found that biased policing and racial profiling
occur in some jurisdictions.
7. Starlight tours are illustrative of police discrimination toward Indigenous persons.
8. The legal authority for police to use force is found in the Criminal Code, although the
absence of national use-of-force statistics precludes a determination of the frequency
with which the various force options are used by police.
9. Police officers have less-lethal and lethal force options that can be used within the force
options framework.
10. Illustrative of the issues that surround police powers is the police practice of entrapment
and the Mr. Big investigative strategy.
11. Citizens have rights when it comes to the search and seizure authority of the police and
police powers of detention and arrest.
12. Under Canadian law, the police have no formal powers to compel crime suspects to
answer their questions.
13. In their rulings, Canadian courts have established that police officers are held to a higher
standard of conduct than ordinary citizens.
14. Persons may be reluctant to fil e complaints against the police for fear of reprisal or a
feeling that their complaint will not be taken seriously.
NEL
CHAPTER 5: Police Powers and Decision-Making
127
~1: Y TERM QUESTIONS
l. What is the principle of accountability?
2. Define discretion and note its role in police decision-making.
3. What are typifications and recipes for action? How do these concepts contribute to our
understanding of the decision-making of the police?
4. Define bias-&ee policing, over-policing, and pretext policing, and then discuss why
these concepts are important in the study of policing.
5. What is the Mr. Big technique used in police investigations, and why is it controversial?
6. Describe the use of search warrants and arrest warrants in policing.
7. What role does an information play in police response to accused persons?
CRITICAL THINKING EXERCISE
Critical Thinking Exercise 5.1
Limitations on the Use of the Mr. Big Strategy: A Case &om the Appeal Court
of ova Scotia
As part of their investigation into a murder, police officers dressed up as gang members in
order to elicit a confession from a woman that she was an accessory to the murder. The
officers were searching for her friend, a former MMA fighter, who was suspected of being
the killer. Posing as outlaw motorcycle gang members, the two officers confronted the
woman in the underground parking garage of her aparbnent building. They told the woman they had been sent "by higher-ups from out west to clean up the mess" left behind by
her friend , the killer. The officers called her a "rat," swore at her, blocked her from leaving
the garage, prevented her from using her cellphone, and then drove her to another city two
hours away. The woman confessed to the officers that she had helped her friend destroy
evidence and escape. He was later arrested on a beach in Venezuela.
The woman was charged with being an accessory to murder. At trial , her defence lawyers argued that the police had violated her right to silence. The trial judge agreed, and tl1e
woman was acquitted. The Crown appealed and the appeal court, citing tl1e decision of
the
in R. V. Hart, denied tl1e appeal in a unanimous decision. Writing for the court,
one of the judges slated, "It is the unacceptable use of police tactics to coerce confessions
that is problematic."
sec
Your Thoughts?
l. What does this case illustrate about the potential problems with the Mr. Big investigative
strategy?
2. Do you agree with the decision of the appeal court?
3. If so, what could the officers have clone differently in an attempt to gather information
from the woman, who they suspected of assisting the killer?
Source: R. Roberts. 2016, September 14. "Appeal Court Upholds Acquittal of Nova Scotia Woman caught in 'Mr. Big' Sting,"
Toronto Star. https://www.thestar.com/news/canada/2016/09/14/appeal-court-upholds-acquittal-of-nova-scotia-woman
-caught-in-mr-big-sting.html.
MEDIA LINKS
"Mr. Big Stings: Cops, Criminals and Confessions," Fifth Estate, January 16, 2015, http://
www.cbc.ca/fifth/episodes/2014-2015/mrbig
"Honest Cops," December 11 , 2013, www.youtube.com/watch?v=f23CPcTdY2M
128
Part II: The Police
NEL
"Crisis of Distrust: Police and Community in Toronto," PL/Toronto, April 26, 2014, https://
www.youtube.com/watch?v=u627BsqA5BM
"Vancouver Airport-Robert Dziekanski's Taser Death,"
.youtube.com/watch ?v= 1CR_k-dTnDU
ovember 14, 2007, https://www
"When Police Kill," Toronto Star, August 2, 2017, https://www.thestar.com/news/gta/when
-police-kill.html
"Inquest Hears 911 Call That Preceded Fatal Police Shooting," CBC ews, October 21 ,
2013, http://www.cbc.ca/news/canada/toronto/inquest-hears-911-call-that-preceded
-fatal-police-shooting-1.2129651
"Hold Your Fire," CBC Firsthand, August 25, 2016, http://www.cbc.ca/firsthand/episodes/
hold-your-fire
"Enhanced Video of Shooting of Sammy Yatim by Toronto Police," July 28, 2013 , https://
www.youtube.com/watch?v=IG60TyjzAgg
"Watch: Former Police Officer Analyzes Streetcar Shooting Video," Global ews, July 30,
2013 , https://globalnews.ca/news/751568/watch-former-police-officer-analyzes
-streetcar-shooting-video
"Police Shootings: Caught on Camera," Fifth Estate, ovember 4, 2016, http://www.cbc
.ca/fifth/episodes/2016-201 7/pol ice-shootings-caught-on-camera
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CHAPTER 5: Police Powers and Decision-Making
129
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130
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Experience, and the Use of Force," Criminal Justice and
Behavior, 34(2), 179-196.
36. J.P. McElvain and A.J. Kposowa. 2008. "Police Officers
Characteristics and the Likelihood of Using Deadly Force,"
Criminal Justice and Behavior, 35(4), 505-521.
37. Toronto Police Service. 2017. Achieving Zero Harm/Death:
An Examination of Less-Lethal Force Options, Including
the Possible Expansion of Conducted Energy Weapons
(C.E. W.s). Toronto: Author. http://www.tpsb.ca/images/
TPSBCEWConsul tation_Agenda_DisPaper. pdf.
38. P. Bulman. 2010. "Police Use of Force: The Impact of
Less-Lethal Weapons and Tactics," If Joumal, 267, 4-10.
https://www.ncjrs.gov/pdffiles 1/ni j/2 3 3280.pdf.
39. Council of Canadian Academies and Canadian Academy
of Health Sciences. 2013. The Health Effects of Conducted
Energy Weapons. The Expert Panel on the Medical and
Physiological Impacts of Conducted Energy Weapons.
Ottawa: Author. http://www.scienceadvice.ca/uploads/eng/
assessments%20and%20publications%20and%20news%20
releases/cew/cew_fullreporten.pdf.
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40. R. Karrass. 2017, February 24. "The Deadly Side ofTasers,"
Lawyers Weekly. http://karrasslaw.com/deadly-side-tasers.
51. Ibid.
4 1. G.P. Alpert. 2009. "Interpreting Police Use of Force and the
Construction of Reality," Criminology and Public Policy,
8( 1), 111-115.
Law."
42. R.B . Parent. 2006. "The Police Use of Deadly Force:
International Comparisons," The Police Journal: Theory,
Practice, and Principles, 79(3), 230-237.
43. VB. Lord. 2012. "Factors lnAuencing Subjects' Observed
Level of Suicide by Cop Intent," Criminal Justice and
Behavior, 39(12), 1633-1646.
44. CBC Radio. 2016, January 21. "Close to 40 Per Cent of
Civilians Killed by Police Are in Mental Crisis." http://
www. c be.ca/radio/th ec u rren t/th e-cu rren t-fo r-j a nu a ry
-21-2016-1. 341315 3/close-to-40-per-cent-of-civilians-killed
-by-police-are-in-mental-crisis-!. 3413219.
45 . R.R. Johnson. 2011. "Suspect Mental Disorder and Police
Use of Force," Criminal Justice and Behavior, 38(2), 127-145.
46. J. Brockman and K.T. Keenan. 2010. Mr. Big: Exposing
Undercover Investigations in Canada. Halifax and Winnipeg:
Fernwood Books.
47. Ibid .
48. K.W. Roach, M.S. Estabrooks, M. Shaffer, and G . Renaud.
2016. "The Hart of the (Mr. Big) Problem," Criminal Law
Quarterly, 63(1/2), 151-178.
52. Sherrin, "False Confessions and Admissions in Canadian
53. A. Crawford. 2016,
ovember 17. "Half of Complaints
against the RCMP Lead to Discipline, Data
Suggests," CBC
ews. http://www.cbc.ca/news/politics/
rcmp-disciplinary-database-1. 3854 365.
54. 1.H. Tulloch (The Honourable). 2017. Report of the
Independent Police Oversight Review. Toronto: Attorney
General of Ontario. https://www.attorneyge neral.jus.gov
.on.ca/english/about/pubs/police_oversight_review.
55. Toronto Police Service. 2016. Corporate Risk Management
Annual Report, 2016. Toronto: Author, p. 27. http://www
.torontopol ice.on .ca/pu bl ica tions/fi les/reports/crm2016
annualreport.pdf.
56. B.C. Office of the Police Complaints Commissioner. 2016.
Annual Report, 2015-2016. Vancouver: Author, p. 57.
https://opcc.bc.ca/wp-content/uploads/2017/04/2015-2016
_OPCC_Annual_Report.pdf.
57. Human Rights Watch. 2017. Submission to the Government
of Canada . Police Abuse of Indigenous Women in
Saskatchewan and Failures to Protect Indigenous Women
from Violence. ew York: Author, p. 18. https://www.hrw
. org/si tes/defa u l t/fi l es/su pporti ng_resou rces/ca nada
_saskatchewan_submission_june_201 7.pdf.
58. Ibid.
49. C. Sherrin. 2005. "False Confessions and Admissions in
Canadian Law," Queen's Law foumal, 30(2), 601-659.
59. S. Arnold, P. Clark, and D. Cooley. 2011. Sharing
50. K. Watkins. 2016. "The Vulnerability of Aboriginal
Suspects When Questioned by Police: Mitigating Risk
and Maximizing the Reliability of Statement Evidence,"
Criminal Law Quarterly, 63(4), 474-503.
. pol icereview 2010.gov. yk.ca/pdf/Shari ng_ Common
_Ground_Final_Report.pdf.
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Common Ground. Review of Yukon's Police Force. Final
Report. Whitehorse: Government of Yukon. http://www
CHAPTER 5: Police Powers and Decision-Making
131
CHAPTER 6
LEARNING
OBJECTIVES
After reading this chapter, you should be able to
• Describe the issues that surround measuring the effectiveness of police
strategies and operations.
• Compare and contrast the professional model of policing, community policing,
and community-based strategic policing .
• Discuss the various techniques that are used in community-based strategic
policing.
• Describe what is known about public attitudes toward and confidence in the police.
• Discuss the challenges of developing and sustaining police-community
partnerships.
• Discuss the debate over the role and activities of groups such as Anonymous
and Creep Catchers.
• Describe primary and secondary crime prevention programs and note their
effectiveness.
• Discuss crime response strategies and crime attack strategies and their effectiveness.
• Discuss the issues that surround the increasing use of high technology in
responding to and attacking crime.
• Discuss the relationship between the police and vulnerable/at-risk groups.
PERSPECTIVE
ACitizen'sView of the Police and Cultural Communities, Saskatoon
I think police officers should be interacting with local cultural communities and they should
participate in these occasions out of uniform. I find that the police uniform gives them a sense of
authoritative figure [sic], which is the purpose, but sometimes these uniforms get to their head and
sometimes cops mistreat people because they think they're better than others or have the power
to treat people badly.
If police officers had the chance to communicate with cultural communities on a personal
level without the labels of "an intimidating cop in uniform" and "minority," then I think they could
appreciate one another better. This isn't restricted to cultural/religious communities, but also local
projects like Friendship Inn, Egads, etc., for instance, places where there are high crime rates and
where unfortunate people hangout. This would allow people to respect each other on another level
and hopefully build some trust and understanding for one another.
Source: M. Lashley, G. Hassan, S. Rahimi, S. Thompson, M. Chartrand, S. Tauzin, . .. A. Akhtar. 2014. Cultural Competency
and Ganada's Security. Montreal: McGill University, p. 101 . http://www.environicsinstitute.org/uploads/news/cultural%
20competence%20and%20canada's%20security%20·%20final%20report%20april%202014.pdf.
Canadian police officers carry out their tasks in social, cultural, and political environments considerably more dive rse than those faced by their predecessors. This
has required police services to develop a wide range of strategies for preventing and
responding to crime. There have also been major shifts in police practice, from more
traditional approaches to multifaceted strategies that rel y on sophisticated analyses. In
this chapter, we trace this evolution and explore the strategies that police services are
using to prevent and respond to crime and social disorder.
MEASURING THE EFFECTIVENESS OF POLICE
STRATEGIES AND OPERATIONS
Most police services in Canada remain wedded to two traditional measures of police
performance that are hold-overs from the professional model of policing: crime rates
and clearance rates. Even in those police services that have adopted a community
policing approach, the performance assessments of individual police officers are still
heavily oriented toward enforcement activities. 1
CRIME RATES AND CLEARANCE RATES
Clearance rates
The proportion of the actual incidents
known to the police that result in the
identification of a suspect, whether or
not that suspect is ultimately charged
and convicted.
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Strategic plans of police services generally contain percentage targets for crime reduction, and annual reports highlight achievements in reducing specific types of criminal
activity in the community. Clearance rates are the proportion of the actual incidents
known to the police that result in the identification of a suspect, whether or not that
suspect is ultimately charged and convicted. Using these measures is problematic on a
number of counts.
For crime rates, there can be problems of interpretation. For example, does an
increase in official crime rates mean the police are ineffective? Or does it mean they
are catching more criminals? Another problem with using official crime rates to assess
police effectiveness is that the focus is on "crime fighting" to the exclusion of other
measures of police performance. In addition, much of what the police are asked to do
by governments and communities-and, in some instances, are required by legislation
and policy to do-has little to do with crime rates.
CHAPTER 6: Police Strategies, Operations, and Engagement
133
In most jurisdictions, police officers do not spend most of their time pursuing criminals. It is also important to note that the police may be unable to have an impact on
the reasons why crime and disorder occur, including poverty, addiction, and family
dysfunction. 2
Further, not all police officers work in the same types of communities; some communities are more crime-ridden than others . Research in Quebec has found, for example,
that police services in small communities are more likely to clear crimes than in large
urban areas and in areas with high poverty levels. 3 And police officers do not all engage
in the same type of police work; some are involved in patrol, others in investigative
units, and so on.
With respect to the effectiveness of specialized law enforcement initiatives, the
Canadian criminologist Thomas Gabor has noted that there have been few Canadian
evaluations of law enforcement efforts to target organized crime, cybercrime, and
white-collar criminals. Gabor argues that it is important to gather information on other
factors, including enforcement costs, the number of investigations that lead to convictions, and the degree to which specific policing initiatives are effective in disrupting
organized crime. 4
CRIME DISPLACEMENT
In attempting to determine the effectiveness of police strategies, there is the slippery
issue of crime displacement- "the relocation of crime from one place, time, target,
offense, or tactic to another as a result of some form of crime initiative." 5 The implementation of a crime prevention program in one neighbourhood, for example, may
cause criminals to move to an area that does not have the program. Instead of reducing
crime, the program has just moved it. One way to reduce crime displacement is to
implement crime prevention programs on a community-wide basis rather than only
in specific areas. Also, it may be necessary to target a wide range of criminal activity
instead of focusing only on specific types of crime.
Crime displacement
The relocation-due to effective
crime prevention and crime response
initiatives-of criminal activity from one
locale to another.
ADDITIONAL MEASURES OF POLICE EFFECTIVENESS
Improving the quality of life in a community, having positive relationships with at-risk
and vulnerable groups, and engaging in collaborative partnerships with other agencies
and community organizations are important roles for the police, yet these activities are
generally not measured. There are a number of additional measures of performance
that capture the multifaceted role of the police, including levels of community and
victim satisfaction with the police and feelings of safety, as measured by surveys; the
success of the police in achieving effective target-hardening and problem-solving with
respect to specific types of crime in identified problem areas in the community; and the
extent to which the police are involved in developing innovative programs to address
issues related to community diversity-for example, issues relating to the LGBT communities, the Indigenous, Blacks, and other racialized groups.
The ability of the police to be effective in carrying out their roles is dependent to a
large extent on the model of policing that is adopted, and these are discussed below.
THE PROFESSIONAL MODEL OF POLICING
Even after the creation of formal police services in Canada (discussed in Chapter 4),
policing remained closely tied to communities; police officers patrolled communities
on foot and were responsible for a variety of tasks. With the introduction of mobile
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Professional model
of policing
A model of police work that is reactive,
incident-driven, and centred on random
patrol.
patrol cars in the 1920s and 1930s, a professional model of policing emerged that was
based on the three Rs: random patrol, rapid response, and reactive investigation.
The central premise of random patrol, also known as the watch system, is that the
mere presence and visibility of patrol cars serves as a deterrent to crime and, at the same
time, makes citizens feel safer. During a typical shift, patrol officers respond to calls and
spend the rest of their time patrolling randomly, waiting for the next call for service. In
this model of policing, any information that is gathered by the police is limited to specific situations and does not include an analysis of the problems that precipitate crime
and social disorder. Little attention is given to proactive police interventions designed
to prevent crime and to address the underlying causes of crime in communities. In
this model of policing, there is no, or limited, use of analytics to inform police policy
and operations.
Research studies have found, however, that, with the exception of specific targeted
strategies, levels of crime are generally unaffected by increases in the number of patrol
cars, quicker response times by patrol officers, or the number of arrests made by patrol
officers. 6 This lack of impact is due in part to the fact that many of the incidents to
which the police respond are only symptoms of larger problems in the community. In
fact, it is how police resources are allocated and deployed that makes a difference. If
the police respond only when they are called and deal only with the incident at hand,
the reasons why the incident occurred in the first place remain unaddressed, and this
increases the likelihood that similar incidents will happen again.
The emergence of community policing was precipitated in part by the recognition
that the police cannot prevent and respond to crime on their own; they require the
assistance of a variety of agencies and organizations as well as community residents.
COMMUNITY POLICING
The 1980s witnessed the re-emergence of an approach to policing that focused on
the community. In a back-to-the-future move, the tenets of community reflect Peel's
Principles that were set out in the early 1800s (see Police File 4.2). These highlighted
the importance of the police being connected to, rather than apart from , the community and accountable to the community.
DEFINING COMMUNITY POLICING
Community policing
A philosophy of policing centred on
police-,;ommunity partnerships and
problem-solving.
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Community policing is based on the idea that the police and the community must
work together as equal partners to identify, prioritize, and solve problems such as crime,
drugs, fear of crime, social and physical disorder, and general neighbourhood decay,
with the goal of improving the overall quality of life in the area. Community policing
is based on the three Ps: prevention, problem-solving, and partnership with the community. Community policing can thus be defined as a philosophy, a management style,
and an organizational strategy centred on police-community partnerships and problem-solving to address problems of crime and social disorder in communities.
The police assume a proactive role in addressing issues in the community. This
requires that patrol officers be given the autonomy and opportunity to identify and
address issues in their areas.
The adoption of the community policing model resulted in the expansion of the
police mandate and activities. o longer were police officers solely focused on law
enforcement but rather they were required to become involved in a variety of activities
related to the quality oflife in the community and to working with community residents
CHAPTER 6: Police Strategies, Operations, and Engagement
135
on a proactive basis to reduce victimization and the fear of crime, as well as to identify
and address community problems. As community policing has evolved, it has also come
to include a variety of operational strategies such that are focused on crime control
and suppression, although the fundamental premise that the police must work closely
with the community has not changed. This new model is known as community-based
strategic policing.
Community policing is about much more than the introduction of new programs to
a community; it involves substantial changes in the organization and delivery of police
services, as well as an expansion of the roles and responsibilities of line-level police officers. Organizationally, patrol officers are given the autonomy and resources to identify
issues in the areas they police and develop problem-solving strategies, often in partnership with the community or neighbourhood.
COMMUNITY-BASED STRATEGIC POLICING
Beginning in the late 1990s and accelerating with the terrorist attacks on the United
States on September 11 , 2001, police services have been facing increasing pressure
to focus on public safety and security and to be more proactive in addressing specific
threats. At the same time, they are expected to continue strengthening ties with other
agencies and with the communities they serve. It appears that a new model of policing
is emerging in the early 21st centu ry-a post-community policing model that incorporates the key principles of community policing while at the same time includes crime
response and crime attack strategies and a continuing emphasis on crime prevention.
All of these approaches are discussed below.
This model has been labelled community-based strategic policing, the title
capturing the importance of community engagement and of police services being
strategic in their policies and operations.7
See Table 6.1 for a comparison of the professional and the community-based strategic
models of police work.
A number of techniques are used by police services to "drive" community-based
strategic policing. Many of these are based on analytics.
Community-based
strategic policing
A model of police work that incorporates
the key principles of community policing
with crime prevention, crime response,
and crime attack approaches.
TABLE 6.1
COMPARISON OF THE PROFESSIONAL AND COMMUNITY-BASED STRATEGIC MODELS OF POLICE WORK
7
Professional Model
Community-Based Strategic Model
Administrative approach (locus of control)
Centralized/hierarchical
Decentralized with strong management and
organizational support
Authority
Statute
Community/statute
Community role
Report violations of the law; passive; no
involvement in identification and response
to crime and disorder
Strategic partnerships, formalized by protocols
and agreements, which integrate into police
operations
Operational focus
Crime and disorder
Crime and disorder; national securi ty,· quali ty of
life; fear of crime and disorder
Operational strategies
Random patrol; reactive investigations; rapid
response
Targeted/directed patrol focused on hot spots;
strategic partnerships: integrated service delivery;
intelligence-led policing; ongoing evaluation;
problem-based deployment of personnel
Dimension
•
Source: Adapted from C.T. Griffiths. 2016. Canadian Police Work (4th ed.). Toronto: Nelson Education Ltd., pp. 220-221. Reproduced by permission. www.cengage.com/permissions.
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CRIME ANALYTICS
Police services are increasingly adopting new technologies to improve their
effectiveness and efficiency. Crime analysts use sophisticated statistical programs to create crime maps and to provide intelligence to police officers in
patrol and investigative un its. Crime analysts, many of them civilians, use
sophisticated statistical tools to not only "mine" data gathered by the police
service but also inform decision making and strategic planning.8
.a. A crime map of Vancouver showing crime
hot spots in 2015
A key issue is how this technology will be managed to ensure that the rights
of citizens are protected, another example of the ongoing tension between the
efforts to ensure public safety and security while protecting citizens' rights .
INTELLIGENCE-LED POLICING
Intelligence-led
policing
Policing that is guided by the collection
and analysis of information that is used
to inform police decision-making at both
the tactical and strategic levels.
The strategy of intelligence-led policing is one example of how police services use
technology to generate information and to deploy departmental resources more effectively. Key to intelligence-led policing are crime maps-that is, computer-generated
maps of specific geographic areas that illustrate the incidence and patterns of specific
types of criminal activity. This information can then be used to identify crime hot
spots, to which patrol and investigative units can then be deployed.
COMPSTAT
Compstat
A strategy designed to increase the
effectiveness and efficiency of police
services while holding police personnel
accountable for achieving crime reduction objectives.
Derived from the words "computer statistics," Compstat is designed to increase the
effectiveness and efficiency of police services while also holding supervisors accountable for achieving objectives in crime reduction. Crime data are analyzed in order
to provide intelligence to officers on where crimes are being committed and who is
committing the crimes. Supervisors are held accountable for addressing the identified
crime and disorder issues in their areas, often in a general meeting of senior police
leadership and supervisors. 9
As one staff sergeant stated, "Whether it's giving an area special attention , deploying
undercover surveillance teams, or having teams develop their own projects, it's
almost always driven by Compstat" (personal communication with C.T. Griffiths,
September 2015).
There is considerable debate as to the effectiveness of Compstat and how it interfaces
with the principles of community policing. There is concern that Compstat places too
heavy an emphasis on crime fighting and generally does not include measures of other
strategies within the community policing model. IO Compstat is a good example of how
community policing has been transformed by the increasing use of analytics.
PREDICTIVE POLICING
Predictive policing
The use of statistical analysis to identify
the lime and location where criminal
activity is likely to occur.
Perhaps the most sophisticated analytical approach, though still in its early stages of
development, is predictive policing. Predictive policing uses statistical analysis to
identify the time and location when criminal activity is likely to occur.
Using analytics, patrol units are directed to specific places where it is predicted a crime
will occur. This increases the likelihood that an offender will be apprehended . Predictive
policing has the potential to fundamentally alter how police resources are deployed and to
increase the effectiveness and efficiency of patrol units_ I I Watch the video, "How Predictive
Pol icing Software Works," listed in the Media Links section at the encl of this chapter.
Predictive policing may have the greatest potential for reducing property-related
crimes, which in many municipalities comprise the majority of serious offences. A pilot
study of the use of predictive policing in the Vancouver Police Department, completed
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CHAPTER 6: Police Strategies, Operations, and Engagement
137
in 2017 , found a 21 to 27 percent drop in property crime in neighbourhoods where
the predictive policing model was applied . These decreases occurred at a time when
property crime rates were rising in other parts of the city. 12 , 13
Concerns have been raised that biased policing may contribute to certain areas, and
persons, being identified as important for police attention in the predictive policing
model. 14 Biased policing is discussed in Chapter 5.
Despite its importance, many police services have only a limited analytical capacity
and are not able to provide their officers with real-time information on a crime, its
location, and who the perpetrators might be. There is considerable evidence that crime
analysis can assist in crime reduction and can increase the effectiveness and efficiency
of police service delivery. 15
THE POLICE AND liHE COMMUNITY
In Chapter 3, it was noted that the relationships between the police and Indigenous,
racialized, and other minority groups have often been fractured due to historical and
contemporary events and circumstances. Effective policing requires that efforts be
made to address the concerns of these groups. The discussion in Chapter 4 identified
community consultation and collaboration as one of the features of core policing,
the notion being that for the police to be effective, residents must be involved in
identifying problems of crime and disorder and in generating solutions to those problems. This requires police services to develop strategies for community engagement,
including outreach efforts to address the suspicion and distrust that may exist among
Indigenous peoples, Blacks and other racialized persons, visible/cultural minorities,
and newcomer groups.
PUBLIC ATTITUDES TOWARD AND CONFIDENCE
IN THE POLICE
The discussion in Chapter 2 high lighted the importance of public trust and confidence
in the criminal justice system . Research File 6.1 summarizes several of the key points
about what is known about the community and community policing. ote that these
RESEARCH FILE 6.1
CITIZEN PERCEPTIONS AND LEVELS OF SATISFACTION
Public-opinion surveys and field research studies have found the
following:
• There is strong support for increased visibility and accessibility of
the police.
• Foot patrols are favoured by community residents.
• Residents who have informal contacts with the police hold more
favourable opinions of the police than those who have formal contact with the police, although there is no evidence that informal
contacts with the police reduce the number of complaints against
the police.
• Residents who feel safe in their neighbourhoods and who have a
positive feeling toward their community hold a higher opinion of the
police.
• Community policing increases police legitimacy.
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Part II: The Police
• Community policing has the potential to reduce fear of crime in
communities.
Levels of Knowledge and Participation
• Community residents, even those who have been the victims
of crime, tend not to become involved in community policing
initiatives.
• Many citizens have little knowledge or understanding of the role and
activities of community policing initiatives such as community police
stations.
• Community residents have positive views of community police
stations, but rarely use them.
• Police services have experienced considerable difficulty in generating and sustaining community interest and involvement in community policing initiatives.
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are general findings and may vary between communities or even within communities, among Indigenous and racialized persons, and among other members of visible/
cultural/religious minority groups.
The strategies used by police services in the community-based strategic policing
model include recruitment and deployment of volunteers in community police stations and storefronts, foot and bike patrols, community police stations and storefronts , and team policing. Team policing-also referred to as zone policing or turf
po/icing-involves permanently assigning teams of police to small neighbourhoods
in an effort to maximize interaction and communication with the community. It also
extends to the view that traditional police work, with its focus on enforcement, is
not always the most effective way to deal with situations in the field. AI, one veteran
officer noted:
What I've come to see over my yea rs is a lot of times, people don 't need police
officers. They just need people who care. So when I have recruits, I always tell
them: it takes the first yea r to figure out how to wear a uniform and be that
presence, and you spend the rest of yo ur career trying to make people forget
you're wearing one. 16
The Ottawa Police Service, for example, sponsors a Somali Youth Basketball League
(SYBL), a volunteer, not-for-profit basketball league that provides a safe environment
for Somali youth. It develops life and leadership skills among the participants and also
provides positive role models (http://www.ottawapolice.ca).
Police services and officers across the country involve themselves in a wide range
of charitable events that not only raise money for important causes but also provide
opportunities for officers to contribute to the community and to encounter community residents in a non-law enforcement capacity. One high-profile initiative is Cops
for Cancer, which involves a wide range of fundraising activities; for example, some
officers have their heads shaved for donations, and others cycle cross-country raising
awareness and collecting donations.
THE POLICE AND RESTORATIVE JUSTICE APPROACHES
Restorative justice was introduced in Chapter 2 as an alternative for addressing
and resolving crime, and the needs of victims, offenders, and the community.
Among the more common restorative justice initiatives are victim-offender mediation, circle sentencing, community holistic healing programs, and family group
conferences. These programs vary in the types of offences and offenders processed;
the procedures for hearing cases, reaching dispositions, and imposing sanctions;
and the extent to which justice system professionals, including police officers,
are involved .
Among the better-known restorative justice programs in which police officers play a
key role are circle sentencing and community and family group conferencing. Circle
sentencing was first used in Yukon; family group conferencing originated in ew
Zealand and has been exported to Australia, Canada, and the United States. C ircle
sentencing is discussed in Chapter 9.
The nature and extent of participation of police officers in restorative justice
initiatives across the country is unknown. Much depends on the types of collaborative partnerships that police services have established with the community and
whether there are restorative programs. What is known is that, in their daily work,
pol ice officers use their discretion to informally resolve situations in which they
become involved.
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139
THE CHALLENGES IN DEVELOPING AND SUSTAINING
POLICE-COMMUNITY PARTNERSHIPS
Efforts of the police to develop collaborative partnerships with the community
may face a number of challenges. Community surveys have consistently found
high (albeit declining) levels of public support for the police (much higher than
any other component of the criminal justice system) and an expectation that
police services will engage in proactive, preventive policing as well as reactive,
enforcement-related activities . Police services often struggle to meet the expectations of the public.
In addition, certain segments of the community may hold less positive views of the
police. This may be due in part to unrealistic expectations. Research studies show
that citizens and communities that are in disorder tend to express lower levels of confidence in the police, reflecting the perception that the police are at least partially
responsible for the disorder and crime. 17 Of all of the agencies in the criminal justice
system , community residents tend to hold the police most responsible for neighbourhood disorder. 18 Across Canada, there are certain hot spots of police-community conflict, much of it centred in Indigenous, Black, other racialized , and visible/cultural
minority communities.
Research studies indicate that police strategies that are most effective in improving
public confidence in the police are those that increase community engagement. 19
Canadian police services have applied a number of other strategies to connect with
community organizations and residents. The Edmonton Police Service, for example,
has eighbourhood Empowerment Teams ( 1ETs) that focus on developing community partnerships and community capacities (http://www.edmontonpolice.ca/
CrimePrevention eighbourhoodEmpowermentTeams.aspx). The goals in this program are to prevent and respond to crime and social disorder and to improve social
development in the community. A key component of the ETs is the setting up of
storefront offices to provide a police presence in the community. An evaluation of the
program found strong support among community residents and improved attitudes
toward the police, particularly among minorities. 20 The impact on crime rates has been
less clear, although the ETs have achieved significant progress toward the overall
objective of improving community "wellness."
ANONYMOUS AND CREEP CATCHERS:
GUARDIANS OF JUSTICE OR VIGILANTES?
A new feature of the criminal justice landscape has been the rise of groups attempting
to address what are perceived to be the shortcomings of the justice system with respect
to the prevention and response to crime. This has presented challenges for policing:
On the one hand, these groups often have public support for targeting persons who
may pose a risk to the community; on the other hand, there are dangers in these
groups usurping the authority of the police and, potentially, violating the rights
of citizens who are targeted.
T Research studies indicate that the most
effective strategies for improving public
confidence are ones that engage with the
community.
ANONYMOUS
One group, Anonymous, has used the Internet as a platform in an attempt
to hold alleged offenders and the criminal justice system accountable. The
group, of unknown size, is distinguished by its Guy Fawkes masks, which
are worn to protect members' identity. In 1605, Fawkes was part of a Roman
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Part II: The Police
.,
_ _ _ _ _ _.___ _ _ _ _ _ _...;.;;;;;a ·c:
c5
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• Groups such as Anonymous attempt to
address perceived shortcomings of the justice
system and are on the rise.
Catholic group that plotted to blow up the English House of Lords during the
state opening of Parliament. The "G unpowder plot" was intended to kill King
James I, a Protestant, and install his nine-year-old daughter on the throne to
rule as a Roman Catholic monarch. The plot was discovered , and Fawkes was
tortured and killed in 1606. A current member of Anonymous stated that the
mask is a "convenient placard to use in protest against tyranny."2 1
The group has been involved in a number of high-profile crime cases in
Canada and the U.S. It identifies persons through a process called "<loxing" an online "treasure hunt" searching for clues in online sources, including
Facebook and comment boards. Information on one site is linked to information from other sites. 22
The Death of Amanda Todd On October 10, 2012, 16-yea r-old Amanda Todd committed suicide by hanging at her home in British Columbia. Prior to her death , she
had posted a video on You Tube that described, via flash cards, her experience of being
blackmailed, bullied, and physically assaulted. See the video in the Media Links section at the end of the chapter.
In Grade 7, Amanda had been convinced by a stranger on the Internet to bare her
breasts. The image was subsequently posted online and resulted in her being teased
and bullied in school. A new term was coined to describe this action: ''sextortion ."
Anonymous became involved in tl1e case and alleged in a recorded statement on
YouTube that they had identified the man who had blackmailed her. The group published his name and address, and he subsequently received death threats on Facebook
and in e-mails. The police investigated and found that Anonymous had identified the
wrong person. Anonymous did not issue an apology, stating tl1at "it didn't care" if it was
a case of mistaken identity since the man has been accused of similar crimes. 23 In 2017,
a man from the etherlands was sentenced by a Dutch court to 11 yea rs in prison for
the crime.
The Death of Rehtaeh Parsons Rehtaeh Parsons, a 17-year-old ova Scotia woman,
committed suicide in 2013. Her deatl1 occurred after she had been gang-raped two
yea rs earlier at a party. The images of the rape had been posted online, and for the
next two years, she was subjected to bullying online, at school, and in the community.
The RCMP investigated the case but there were no arrests or charges. Anonymous
posted messages online threatening to release tl1e names of tl1e alleged offenders.
Two years later, in 2015, Anonymous identified four individuals who they stated were
responsible for the sexual assault on Rehteah Parsons. Two men, who were identified
by Anonymous, were subsequently charged and convicted in the case. The father of
Rehteah Parsons credited Anonymous for pressuring the police to reopen the investigation and to lay charges against the two men. 24
An independent review of tl1e case found that the Halifax police and the Crown
counsel's office both mishandled the investigation, including taking too long to
complete tl1e investigation and failing to address the cyberbullying that the young
woman experienced.
CREEP CATCHERS
The activities of another group called ~reep Catchers (http://ttacc.ca) raise a number
of issues concerning tl1e role of the community in crime-fighting and whetl1er such
initiatives violate citizen's rights. See At Issue 6.1.
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CHAPTER 6: Police Strategies, Operations, and Engagement
141
AT ISSUE 6.1
CREEP CATCHERS: PROTECTING THE COMMUNITY AND POTENTIAL VICTIMS
OR PREDATORY VIOLATORS OF PRIVACY?
Members of the group, which has "chapters" across the country, pose
on the Internet as underage youth. When an adult responds, a meeting
is set for a public place, at which time members of Creep Catchers
confront the person. The entire encounter is video-recorded as evidence to be provided to the police. Among the persons caught in a
sting was an off-duty police officer.
The group has been criticized for violating the privacy rights of citizens. In 2017, for example, the BC Privacy Commissioner ordered the
Surrey (British Columbia) Creep Catchers to destroy all videos and to stop
the collection, use, and disclosure of information on two persons they
had busted.a The privacy commissioner had found that Creep Catchers
had violated the provincial Privacy Act by shaming the two individuals.
A Canadian police scholar has criticized the group, arguing that the
videos that are made violate due process and could interfere with police
investigations that may have been underway at the time of the sting.b
Others have praised the group as providing a service to the community and protecting potential victims, the majority of which would be
underaged girls.
Although the police have publicly discouraged the group from
its activities, a number of persons have been charged after Creep
Catcher stings. Among them was a 31-year-old Charlottetown,
Prince Edward Island, man, charged in 2017 with making an
agreement or arrangement to commit a sexual offence against a
child. This after the man was lured by Creep Catchers to a public
location and video-recorded by the Cape Breton Creep Catchers.c
Watch the video, "Predator Tries to Destroy the Evidence and
Gets Arrested," from June 2017 (https://www.youtube.com/
watch?V= 7HjNh2aQPTO).
Creep Catchers film one of their suspects.
QUESTIONS
1. What are your views on Creep Catchers? Are they guardians of
public safety or intruders on citizens' privacy?
2. What are the positive and problematic factors associated with this
type of activity by a community group?
• H. Mooney. 2017, July 26. "'I Told Them to Go F--k Themselves': Surrey Creep
Catchers Ordered to Destroy Videos," Toronto Sun. http://www.torontosun.com/
2017/07 /26/i-told-them-to-go-f--k-themselves-surrey-creep-catchers-ordered
-to-destroy-videos.
b R. Laychuk. 2017, May 9. "Creep Catcher Confrontation Part of Problematic Trend,
Manitoba Professor Says," CBC News. http://www.cbc.ca/news/canada/manitoba/
manitoba-creep-catcher-confrontation-reaction-1.4105467.
c C. MacKay. 2017, August 15. "Charlottetown Man Charged Following 'Creep
Catchers' Sting," CBC News. http://www.cbc.ca/news/canada/prince-edward-island/
pei-charlottetown-man-charged-1.4248178.
CRIME PREVENTION
Crime prevention programs are generally aimed at reducing crime, generating community involvement in addressing general and specific crime problems, and heightening citizens' perceptions of safety. The three main approaches to crime prevention
are primary, secondary, and tertiary prevention . Police departments are most extensively
involved in primary crime prevention programs, although they do participate in secondary and (to a lesser extent) tertiary crime prevention as well.
The majority of crime prevention programs operated by Canadian police services
have not been evaluated, and, in some cases, programs that have been determined
by evaluative studies to be ineffective are still being sponsored by police. This has
led a number of observers to call for the implementation of evidence-based crime
prevention. 25
PRIMARY CRIME PREVENTION PROGRAMS
Primary crime prevention programs identify opportunities for criminal offences and
alter those conditions to reduce the likel ihood that a crime will be committed. CCTVs
142
Part 11: The Police
Primary crime
prevention programs
Programs that identify opportunities
for criminal offences and alter those
conditions to reduce the likelihood that a
crime will be committed.
NEL
(closed-circuit television cameras) are perhaps the most controversia l ot the
primary crime prevention programs. CCTVs have been used extensively in
Britain and the United States for many years and have been installed in some
Canadian municipalities. While concerns over privacy have been expressed,
Canadian society is well on the way to becom ing a "surveillance" society. The
movements and behaviour of citizens are recorded tens or perhaps hundreds
of times per da y as they move around the community. There are cameras on
buses, in taxis, in most private businesses, not to mention in every smartphone.
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SECONDARY CRIME PREVENTION PROGRAMS
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Secondary crime
prevention programs
Programs that focus on areas that
produce crime and disorder.
Tertiary crime
prevention programs
Programs designed to prevent youth and
adults from reoffending.
Secondary crime prevention programs focus on areas that produce crime and
other types of disorder. Some initiatives focus on identifying high-risk offenders
and include analyses that target high-crime areas. Others are designed to help
vulnerable groups avoid becom ing the victims of crime. One example is Camp Little
Buffalo, sponsored by the Grande Prairie (Alberta ) RCMP Detachment in collaboration with partners in the community. This five-day leadership camp is for at-risk
youth between the ages of 11 and 13 . The camp, which focuses on the development
of communication, goal-setting, and problem-solving skills, among other skills sets,
includes a variety of sports and outdoor activities. The program is also designed to foster
positive interactions between the police and youth (http://www.cityofgp.com/index
.aspx?page=99 5).
Tertiary crime prevention programs are designed to prevent youth and adults from
reoffending. Most tertiary programs are directed towards first-time, less serious offenders,
and typically have a high degree of success. Tertiary crime prevention programs are
often collaborative efforts of justice and social service agencies and community groups .
An example are the various diversion programs for first-time yo uth offenders, discussed
in Chapter 13. These include intensive support programs (ISPs) that provide an alternative to custody for high-risk youth.
The effectiveness of several of the more common primary and secondary police
crime prevention programs are set out in Research File 6.2.
RESEARCH FILE 6.2
THE EFFECTIVENESS OF SELECTED PRIMARY AND SECONDARY CRIME PREVENTION PROGRAMS
Primary Crime Prevention Programs
Program
Strategy
Effectiveness
Crime Prevention Through
Environmental Design (CPTED)
Altering the physical environment of structures
and places (e.g., improved lighting) to reduce
criminal opportunities
In some jurisdictions, altering the designs of buildings
and pedestrian routes have helped to reduce levels of
robberies, assaults, and residential break-and-enters.
Closed circuit television (CCTV)
Placing cameras in business and/or residential
areas to provide live images 24/7
Pilot projects in Calgary and Toronto and cities in the U.S.
and U.K. found that CCTVs are most effective and can
assist in investigations when targeted at specific locales,
such as drug-dealing spots and parking garages.a,b.c
May be most effective in reducing levels of disorder and
in providing evidence to assist police in apprehending
perpetrators after a crime has been committed.d,e
(continued)
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CHAPTER 6: Police Strategies, Operations, and Engagement
143
Program
Strategy
Effectiveness
Neighbourhood Watch
Organizing residents to make them aware
of strangers and criminal activities in their
neighbourhood
This program is effective in reducing crime in some
communities, although little is known about the factors
that influence its effectiveness_! Implementation is most
successful in low-crime, middle-class neighbourhoods.g
Secondary Crime Prevention Programs
Program
Strategy
Effectiveness
Drug Abuse Resistance
Education (DARE) for youth
School-based program that provides information
to youth about the perils of drug use
While the program generally has high levels of
participation among educators, parents, and youth, the
program has no impact on student attitudes and beliefs
about drugs or drug use.hThere is some evidence that
the program may improve youth attitudes toward the
police, particularly among youth from minority groups.i
Police school liaison officer
programs
Police officers are assigned to schools on a
residential (full-time, in school) or non-residential
(periodic officer visits) basis. Officers make class
presentations and participate in school activities.
Objectives are primary and secondary crime
prevention.
Few evaluations have been done. Programs may increase
the legitimacy of the police with students and have
indirect benefits (e.g., identifying at-risk youth, providing
intelligence to patrol and investigative units); no demonstrated impact on school safety or crime rates.i Programs
may result in criminalization of disciplinary situations.
Community mobilization
A strategy designed to reduce crime and
victimization ; strengthens at-risk communities
and families and increases community wellness;
involves government agencies (e.g., health,
education, social services), community groups,
the police, and others working collaboratively to
address larger social issues and the needs of
at-risk families and individuals.
The Prince Albert, Saskatchewan, program (commonly
known as "The HUB"), the first of its kind in Canada,
resulted in fewer calls for police service, reduced rates of
violent and property crime, and a decline in emergency
room visits.k It is being implemented in other Canadian
cities.
• M. Barkley. 2009. CCTV Pilot Project Evaluation Report. Toronto: Toronto Police Service. http://geeksandglobaljustice.com/wp-contenVTPS-CCTV-report.pdf.
b B.C. Welsh and D.P. Farrington. 2009. ' Public Area CCTV and Crime Prevention: An Updated Systematic Review and Meta-Analysis," Justice Quarterly, 261'.4), 716-745.
c J.H. Ratcliffe, T. Taniguchi, and R.B. Taylor. 2009. 'The Crime Reduction Effects of Public CCTV Cameras: A Multi-Method Spatial Approach," Justice Quarterly, 261'.3), 746-770.
d S.J. McLean, R.E. Worden, and M. Kim. 2013. "Here's Looking at You: An Evaluation of Public CCTV Cameras and Their Effects on Crime and Disorder," Criminal Justice Review,
3&;3), 30~334.
• J. Ratcliffe. 2009. Video Surveillance of Public Places. Washington, DC: U.S. Department of Justice, Center for Problem-Oriented Policing. https://cops.usdoj.gov/pdf/pop/e02061006.pdf.
1 C. Gill. 2016. ' Community Interventions," in What Works in Crime Prevention and Rehabilitation: Lessons from Systematic Reviews, edited by D. Weisburd , D.P. Farrington, and
C. Gill, 77-110. New York: Springer at p. 109.
g T. Bennett, K. Holloway, and D.P. Farrington. 2006. ' Does Neighborhood Watch Reduce Crime? A Systematic Review and Meta-Analysis," Journal of Experimental Criminology,
2(4), 437-458.
h D.P. Rosenbaum. 2007. ' Just Say No to D.A.R.E," Criminology and Public Pu/icy, 61'.4), 815-824.
i A.M. Schuck. 2013. ' A Life-Course Perspective on Adolescents' Attitudes to Police," Journal of Research in Crime and Delinquency, 5~4), 579-607.
JC. Na and D.C. Gottfredson. 2013. ' Police Officers in Schools: Effects on School Crime and the Processing of Offending Behaviors," Justice Quarterly, 3~4), 619-650.
k Public Safety Canada. 2013. "Community Mobilization Prince Albert (Synopsis). " http://www.publicsafety.ca/cnVcntrng-crm/plcng/cnmcs-plcng/ndx/snpss-eng.aspx?n= 152.
There is strong support for crime prevention among Canadians. The results of a
national survey ( = 1,863), which included a question on spending priorities, are
presented in Figure 6. 1.
144
Part II: The Police
NEL
FIGURE 6.1 •
-
Spending Priorities in the
Criminal Justice System
"'C
J!I ,g
~ 5i
72%
33%
39%
32%
25%
28%
33%
25%
10%
~
100
What are the top three areas where you
think money should be spent in the criminal
justice system (1st, 2nd, 3rd priority)?
Source: Ekos Research Associates. 2017.
National Justice Survey: Ganada's Criminal
Justice System [Synthesis report]. Ottawa:
Department of Justice Canada, p. 82.
80
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0
60
52%
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~
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CRIME PREVENTION IN INDIGENOUS COMMUNITIES
Developing and implementing effective crime prevention programs in Indigenous
communities has proven to be a challenge both for police services (Indigenous and
non-Indigenous) and communities themselves. The crime prevention initiatives that
have been developed to date fall into one of two categories: (1) programs that are
part of an overall crime prevention strategy, developed by senior police administrators, and implemented in both Indigenous and non-Indigenous communities; and
(2) programs that are developed by police officers at the local level in collaboration
with chiefs, band councils, and community residents. eedless to say, these latter
programs have been the most effective. The effectiveness of programs is increased
when community residents have a significant role in the design and delivery of
the interventions.
There are a variety of programs across the country. The Six ations Police
(Ontario) operate Police Athletic League for Students (PALS) and Life Skills
101. This program is directed at high-risk youth and targets youths in the 6- to
12-year age range. One afternoon per week, youths from participating schools are
with police officers in a variety of athletic activities. L ife Skills 101 assists yo uths
to gain insights into their behaviour and to avoid future conflicts and violence. It
includes field trips, drug awareness programming, and assistance with school studies
(http://sn pol ice.ca/pals).
In a national consultation, Indigenous communities highlighted the need for a
policing model that emphasized an integrated, problem-oriented approach that was
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CHAPTER 6: Police Strategies, Operations, and Engagement
145
reflective of the needs of communities and involved the police working with other
community services. 26
CHALLENGES IN CRIME PREVENTION
There are several possible reasons why crime prevention strategies have not been as
successful as the police and public might have hoped. One is community participation. First, the public often is not aware of police crime prevention initiatives. An environmental scan conducted by the Ottawa Police Service (OPS), for example, found
that, with the exception of eighbourhood Watch and Crime Stoppers (both of which
received considerable media attention), most residents did not know much about the
OPS crime prevention programs. 27
Generally, it appears that only about 10 percent of households participate in
crime prevention programs. Ironically, citizens who do participate in community
crime prevention initiatives tend to live in neighbourhoods with few problems;
in other words, they are among those least at risk of victimization. For the full
potential of crime prevention initiatives to be realized, it is essential that there be
participation by residents in those neighbourhoods affected by high rates of crime
and trouble.
CRIME RESPONSE STRATEGIES
Police services use a variety of strategies to respond to crime. Among the more important
strategies are presented in the following sections.
THE BROKEN WINDOWS APPROACH
The broken windows approach emerged in ew York C ity in the 1980s and was a
metaphor for neighbourhood deterioration. It was based on the observation of patrol
officers that if a window in a building was broken and had not been replaced, in very
short order all the windows would be broken. According to this approach, a broken
window that remains in place is a statement that no one cares enough about the neighbourhood's quality of life to bother fixing the little things that go wrong. A broken
window i a small thing, yet it may trigger further neglect and result in the progressive
deterioration of the entire neighbourhood.
The central thesis of the broken windows theory, then, is that "the existence of
unchecked and uncontrolled minor incivilities in a neighborhood-for example, panhandling, public drunkenness, vandalism and graffiti-produces an atmosphere conducive to more serious crime." 28
This model of policing emphasizes rapid deployment of officers and relentless follow-up. The broken windows approach was developed in ew York City
and was associated with a sign ificant reduction in crime in ew York City. It has
been adopted by many police services in Canada.
Considerable controversy has surrounded the broken windows theory, and
questions have been raised as to the effectiveness of the various policing strategies that are based on its tenets. Among the questions that have been raised
are whether policing initiatives targeting disorder are effective in reducing the
levels of crime and, if so, at what cost, including the potential of over-policing
and increases in public concern with safety. 29, 30
146
Part II: The Police
Broken windows
approach
The view that if minor crimes are left
unaddressed in an environment, more
serious crime will emerge.
• A derelict, "broken windows" neighbourhood
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ZERO-TOLERANCE POLICING AND QUALITY-OF-LIFE POLICINu
Zero-tolerance
policing
A crime response strategy centred on
the premise that a strict order-maintenance approach by the police will
reduce more serious criminal activity.
Quality-of-life
policing
Police efforts to improve conditions
in an area by targeting disruptive and
annoying behaviour.
A policing strategy that has gained popularity in the past decade or so is zero-tolerance
policing, also referred to as confident policing, proactive policing, or community policing
with the gloves off. The key principle is that a strict order-maintenance approach by the
police in a specific area, coupled with high police visibility and presence, with a focus
on disorder and minor infractions, will reduce more serious criminal activity.31
Increased police visibility is a core component of quality-of-life policing, which
involves efforts to improve conditions in an area by targeting disruptive and annoying
behaviour such as panhandling, loitering, and public drug and alcohol use.
These aggressive police strategies have often resulted in charges that the police are
over-policing in certain communities and neighbourhoods and racial profiling. In
ew York City, the police employed "stop and frisk" in an attempt to reduce the levels
of violent crime. Persons were stopped and frisked for weapons and other contraband.
Police officers were required to have only "reasonable suspicion" that a crime was
about to occur. Critics pointed to data indicating that a disproportionate number of
African Americans and Latinos were targeted, and a report by the state attorney general found that only 3 percent of 2.4 million stops resulted in a conviction. 32 A federal
court ruled in 2013 that the practice violated the constitutional rights of minorities
in the city.33
A similar controversy has surrounded the police practice of street checks in Canada.
This is discussed in Chapter 5.
PROBLEM-ORIENTED POLICING (POP)
Problem-oriented
policing (POP)
A tactical strategy based on the idea
that the police should address the
causes of recurrent crime and disorder.
NEL
Problem-oriented policing (POP), wh ich is based on the idea that policing should
add ress the root causes of recurring problems of crime and disorder and then fashion
solutions to those problems, often in collaboration with the community.
A central tenet of POP is the iceberg (or 80/20) rule, the view that crime (20 percent
of the iceberg) is only a visible symptom of invisible, much larger problems (the
80 percent of the iceberg that lies below the water's surface).
The SARA (sca nning, analysis , response , and assessment) problem-solving
model helps officers identify and respond to problems, with the assistance of various agenc ies and organizations and community groups. It involves identifying the
problem; determining the cause, scope, and effect of the problem; developing a
plan to address and solve the problem; and determining whether th e intervention
was successful.
Problem-solving is central to the RCMP's CAPRA model. The letters stand for
focusing on Clients, Acquiring and Analyzing information, developing and maintaining
Partnerships, generating an appropriate Response, and Assessing the intervention.
The particular problem to be addressed may be community-wide and require a
long-term plan of action, or it may involve a single individual and a situation that
can be addressed in relatively short order. A good example is what is known as
"problem premises," which consume considerable police resources. In Vancouver,
for example, one relativel y small rooming house was fl agged as a problem premise:
Police were called to the address a total of 259 times during an 18-month period.
A total of 413 officers were on scene for more than 320 hours, and the overa ll cost
to the taxpayers was $25,000. The Vancouver Police Department targeted specific
individuals living in the rooming house, and the number of calls for service was
reduced. 34
CHAPTER 6: Police Strategies, Operations, and Engagement
147
CRIME ATTACK STRATEGIES
Crime attack strategies are proactive operations used by the police to target and apprehend criminal offenders, especially those deemed likely to reoffend, and to identify
specific areas or neighbourhoods. These include increased patrol visibility, including
foot patrols; proactive policing by patrol officers; and rapid patrol response.
Crime attack
strategies
Proactive operations by the police to
target and apprehend criminal offenders.
TACTICAL-DIRECTED PATROL
One widely used strategy is the tactical-directed patrol, which involves saturating highcrime areas (often referred to as hot spots) with police officers, or targeting individuals
engaged in specific types of criminal activity. These may include areas that generate frequent hard crime calls (e.g., for holdup alarms, shootings, stabbings, auto thefts, thefts from
autos, assaults, sexual assaults) or soft crime calls (e.g., for audible break-in alarms, disturbances, drunks, noise, unwanted individuals, vandalism, prowlers, fights). These hot spots,
which are often identified through intelligence-led policing, are plotted on crime maps.
Directed forms of patrol are usually either location- or person-oriented. Tactical patrol
strategies give police managers greater control over their most valuable resource-the
time and activities of patrol officers. Foot and bicycle patrols may also be used in hot
spot areas. The Vancouver Police Deparbnent, for example, deploys dedicated foot patrol
officers in beat enforcement teams in the troubled Downtown Eastside area of the city.
TARGETING HIGH-RISK OFFENDERS
Many police services have developed initiatives designed to target high-risk offenders.
Examples include the following:
• Calgary Police Service Serious Habitual Offender Program (SHOP) and MultiDisciplinary Resource Team (MDRT): SHOP is a multiagency (police, probation,
Crown, social services agencies, and corrections) information and case management
program for yo uths and adults designated as serious habitual offenders. SHOP monitors
the activities of offenders both during custody and upon release in an attempt to reduce
serious crime. The MDRT initiative is designed for early intervention and support for
high-risk youths in the city.
• Repeat Offender Program Enforcement Squad (ROPE): The ROPE squad, with officers
from a number of municipal, provincial, regional , and federal police services, locates
and apprehends criminal offenders who are unlawfully at large because they have violated the conditions of their release from custody, have failed to return to custody, or
have escaped from correctional authorities.
• Integrated Police-Parole Initiative (lPPI): This program places police officers in parole
offices of Correctional Service Canada (CSC). These officers work side-by-side to monitor the activities of high-risk offenders released into the community. A preliminary evaluation of the program found that there was a reduction in technical violations of condition
release by offenders in those CSC offices participating in the IPPI program, suggesting
that this approach may assist with reintegration of offenders. 35 This is a good example of a
tertiary crime prevention program (discussed earlier), as the efforts of the police and their
partners are directed toward preventing re-offending.
These types of police strategies have not been without controversy. The Toronto Police
Service Anti-Violence Intervention Strategy (TAVIS) was created to reduce the high levels
of gun violence and to enhance public safety in high-crime neighbourhoods in Toronto.
Its strategies included intervention, prevention, and community support and mobilization. A key strategy was building relationships with the residents in at-risk neighbourhoods.
148
Part II: The Police
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Community meetings, high-profile police patrols, and the identification of crime hot spots
and individuals involved in gun violence are all components of TAVIS.
Critics, including representatives of racialized groups, alleged that TAVIS engaged in
over-policing and racial profiling. There were concerns that Black youth in particular
were arbitrarily stopped and searched. These concerns led to the renaming and restructuring of the program and a shift in focus toward community policing and a focus on
crime prevention. 36
For a summary of the effectiveness of selected crime response and crime response
strategies, see Research File 6.3 .
RESEARCH FILE 6.3
THE EFFECTIVENESS OF SELECTED CRIME RESPONSE AND CRIME ATTACK STRATEGIES
Crime Response Strategies
Strategy
Technique
Effectiveness
Problem-oriented
policing (POP)
Police attempt to address the root causes
of crime and disorder and fashion solutions
to those problems in collaboration with
community residents. The use of SARA.a
Has the potential to reduce crime and disorder and to reduce
the fear of crime. Can improve police-community relations and
develop skills in patrol officers.b
Broken windows theory
The existence of unchecked and uncontrolled
minor infractions/incivilities in a neighbourhood
produces an environment conducive to serious
crime.c
Studies on the impact of broken windows have produced mixed
results. Some studies have found no impact on crime rates, while
others have found a reduction in property crime rates.d, e It is likely that the broken windows approach may work in some types of
neighbourhoods and that its impact may be increased if it is combined with community policing initiatives. There are concerns that
in adopting the broken windows approach, the increased police
activity may result in elevated levels of fear in the community. The
legitimacy of the police may be compromised if certain segments
of the community perceive they are being targeted. 1
Zero-tolerance/
quality-of-life policing
Influenced by broken windows, these strict
order-maintenance approaches are taken in
specific areas, including high police visibility
and a focus on disorder and minor infractions.
Often involve police crackdowns on specific
criminal activities, such as drug dealing.
Police presence may alter offenders' behaviour. Increased police
visibility increases citizens' sense of security, may deter criminal
behaviour, and increases police legitimacy.9
Crime Attack Strategies
Strategy
Technique
Effectiveness
Tactical-directed patrol
Proactive, aggressive patrol in high-crime
areas. Patrol officers use unallocated time
to engage in purposeful activities directed
by analysis of crime data. May be locationfocused or person (offender)-oriented. Often
applied in conjunction with crackdowns, focusing on specific types of criminal activities, such
as drug dealing.
Increasing the number of uniformed police officers in patrol cars
in hot spots and during hot times (crime peaks) may significantly
reduce levels of criminal activity. Proactive police arrests, including zero-tolerance arrest policies that focus on high-risk people
and offences, can reduce the levels of serious violent crime. The
impact of crackdowns may depend upon the community. Are
resource-intensive and difficult to sustain positive results over the
long term . May undermine the legitimacy of the police, particularly
among young men and other groups who are more likely to be the
targets of police attention.h
(continued')
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CHAPTER 6: Police Strategies, Operations, and Engagement
149
Strategy
Technique
Effectiveness
Hot spot policing
Police focus on areas that have a high
concentration of crime and/or disorder and a
high risk of criminal victimization.i
Can reduce crime and disorder without displacing crime to
surrounding areas; long-term effectiveness is enhanced by the
use of POP.i
Foot patrols
Officers walk a "beat" in a neighbourhood or
district. Some police services have dedicated
foot patrols, while others encourage officers to
park their patrol cars and walk when they have
the opportunity.
Emerging evidence that strategically directed foot patrols can
reduce the levels of crime and disorder in neighbourhoods.k
Reduce citizens' fear of crime and calls for service. Improve
officers' familiarity with neighbourhoods. To be effective, must be
deployed as part of a comprehensive community policing strategy
rather than as an add-on.
aJ.E. Eck. 2004. "Why Don't Problems Get Solved?" in Community Policing: Can It Work? edited by W.G. Skogan, 185-206. Belmont, CA: Wadsworth/Thomson Learning.
b S.N. Durlauf and D.S. Nagin. 2011. "The Deterrent Effect of Imprisonment," in Controlling Crime: Strategies and Tradeoffs, edited by P.J. Cook, J. Ludwig, and J. Mccrary, 43--94.
Chicago: University of Chicago Press.
c R.H. Burke. 1998. "The Socio-political Context of Zero Tolerance Policing Strategies," Policing, 21(4), 661Hl82.
d B.E. Harcourt and J. Ludwig. 2006. "Broken Windows: New Evidence from New York City and a Five-City Social Experiment," The University of Chicago Law Review,
7.3(1), 271-320.
• J. Hyunseok, L.T. Hoover, and B.A. Lawton. 2008. "Effect of Broken Windows Enforcement on Crime Rates," Journal of Criminal Justice, 361;6), 529-538.
1 J.C. Hinkle and D. Weisburd. 2008. "The Irony of Broken Windows: A Micro-Place Study of the Relationship Between Disorder, Focused Police Crackdowns, and Fear of Crime,"
Journal of Criminal Justice, 361;6), 503--512.
g M.S. Scott. 2003. The Benefits and Consequences of Police Crackdowns. Washington, DC: Office of Community Oriented Policing Services, U.S. Department of Justice.
http://www.popcenter.org/responses/police_crackdowns.
h J.M. Gau and R.K. Brunson. 2010. "Procedural Justice and Order Maintenance Policing: A Study of Inner-City Young Men's Perceptions of Police Legitimacy," Justice Quarterly,
27{2), 255-279.
1J.E. Eck, S. Chainey, J.G. Cameron, M. Leitner, and R.E. Wilson. 2005. Mapping Crime: Understanding Hot Spots. Washington, DC: National Institute of Justice, U.S. Department of
Justice. httpJ/discovery.ucl.ac.uk/11291/1/11291.pdf.
I Durlauf and Nag in, "The Deterrent Effect of Imprisonment."
k J.H. Ratcliffe, T. Taniguchi, E.R. Goff, and J. Wood. 2011 . "The Philadelphia Foot Patrol Experiment: A Randomized Controlled Trial of Police Patrol Effectiveness in Violent Crime
Hotspots,' Criminology, 4~3), 795-831.
THE POLICE AND VULNERABLE/AT-RISK GROUPS
A key theme in this text is the experience of Indigenous and racialized persons, members of visible/cultural/religious minority groups, and other at-risk and vulnerable persons with the criminal justice system. It is police officers who have the most contact
with persons who are vulnerable or members of at-risk groups, and many of the controversies that surround policing in the early 21st century revolve around this issue:
'To what extent do police services respond appropriately to the needs of these groups,
which may include PwMI (persons with mental illness), sex trade workers, Indigenous
persons, including Indigenous women, and others?"
RESPONDING TO PERSONS WITH MENTAL ILLNESS
It was noted in Chapter 5 that patrol officers are encountering more and more persons with mental illness (PwMI). A number of these encounters have ended tragically. The number of incidents involving mentally ill persons increased significantly
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when provincial governme nts fa il ed to provide enough communi ty-based treatmem
progra ms and fa cilities foll owing the massive deinstitutionalization of the m entally
ill during the 1960s and 1970s. This has resulted in mass ive downloading onto the
police, who have becom e de fac to communi ty me ntal health wo rkers and are the first
responders to th e m entally ill on the streets and in neighbourhoods. Responding to
m ental health costs is also resource-intensive. In 20 14, mental health-related calls to
th e London (Ontario) police inc reased 40 percent and consumed 15 percent of the
police budget for the yea r. 37
In contrast to th e portrayal of th e police in th e popular m edia, offi ce rs are as likely
to be ca ll ed to a m ental illn ess crisis as to a ro bbery. In Va ncouve r, a study fo und
that 31 percent of the calls for service received by th e departm ent had som e m e ntal
health compone nt, and th ere we re individuals who had nea r daily contac t with th e
poli ce. 38
The Toronto Police Service is dispatched to approx imately 20,000 calls fo r service
annually involving a person in crisis. This is between 2.0 and 2.5 percent of all occaions on whi ch police are dispatched. Approximately 8,000 of these events involve
apprehensions under th e Mental Health Act (R.S .O . 1990, c. M.7). Som e of these
encounters, sadl y, result in th e application of lethal fo rce by police. Between 2002 and
20 12, fi ve persons who were described as "emotionally disturbed persons" were fatally
shot by police. 39
Among the findin gs of a review of police encounters with PwMI in Toronto were
that there had been a fa ilure of provincial mental health system to provide adequate
communi ty-based treatment resources. In the view of this report, the police alone could
not effecti vely address the needs of PwMI, and a robust response was required by the
provincial mental health system and oth er agencies. 40
Police File 6. 1 profil es several cases that illustrate the types of cases of persons in crisis
that come to the attention of municipal poli ce services.
POLICE FILE 6.1
CALLS TO A MUNICIPAL POLICE SERVICE IN 2014 REGARDING CHRONIC/REPEAT PERSONS
WITH MENTAL HEALTH CONCERNS: FOUR CASE STUDIES
A chronically suicidal female has generated over 48 police files in 2014
alone, 19 of which occurred between April 1Oand May 14, 2014.
Police have apprehended this female 12 times under section 28 of the
Mental Health Act. This female suffers from full spectrum FASO (fetal
alcohol spectrum disorde~. addiction issues, and borderline personality
disorder.
AA elderly male suffering from dementia has made over 154
unfounded calls to police over the past two years. Although each
call is deemed unfounded, police must attend every time a report
is called in.
A mother concerned for her son called the police to help with her son
who is currently living with her. The male has no previous mental health
diagnosis. Upon police review, this male has generated over 233 calls
for service since 2006. Police attended his home with a psychiatrist and
the male was certified and taken to hospital.
A 30-year-old homeless man with a psychotic disorder has generated 2,048 calls for service between 2005 and 2014, 507 of which
occurred in the city. The calls range from the male acting bizarrely,
talking to himself, aggressively panhandling, sleeping in business
alcoves, or being found in women's washrooms.
Source: Materials provided to author from a municipal police service.
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Concerns have been raised that the police inappropriately use arrest to resolve
encounters with mentally disordered people; this is most commonly referred to as the
"criminalization" of the mentally ill. Research studies, however, have not supported
this assertion. 41 Rather, Canadian police officers generally demonstrate high levels of
benevolence and empathy toward mentally ill people, as well as a strong interest in
linking them with appropriate services. 42
Police services have been strong advocates for adequate funding for community
mental health programs and services that will address the needs of this vulnerable population. Across the country, there are a variety of collaborative partnerships involving
the police, mental health services, and community organizations that are designed to
address the unique needs of PwMI, many of whom have extensive contact with the
police.4 3,44 Most major police services ensure that officers receive crisis intervention
training (CIT) where they learn about mental illness and various strategies for managing encounters with PwMI. 45
Police services have developed innovative initiatives with mental health agencies.
The Durham Regional Police Service, Toronto Police Service, and Vancouver Police
Department, among others, operate patrol units staffed by a police officer and a
mental health worker. Watch the video, "Inside Toronto Police Service's Mobile Crisis
Intervention Team" (CBC ews, July 5, 2017) available at https://www.yo utube.com/
watch?v=osrzI06wT5E .
The Vancouver Police Department (YPD) and a number of the other larger police
services participate in assertive outreach teams . These teams are comprised of a police
officer and a psychiatrist who intervene in the 72 hours after a person is released from
the hospital psych unit. 46 See the video on the Vancouver team ("Assertive Outreach
Team Looks to Fill in Critical Mental Health Gap") in the Media Links section.
The VPD also participates in the assertive community treatment (ACT ) teams.
These teams include psyc hiatrists, social workers, nurses, and vocational counsellors, among others. The teams focus on addressing the needs of persons who have
had extensive contact with the health system and the police. This includes assistance with housing and access to employment and health services (http://vancouver
. ca/pol ice/orga niza tion/i n vestiga ti on/i nvestiga tive-su pport-services/you th-services/
mental-heal th .html ).
Positive outcomes have been reported by police services that have adopted the
CIT model , including lower rates of arrest of PMI.47 The Edmonton Police Service
has developed a training program to improve interaction and communication
between PwMI and the police. The training has resulted in less use of force with
PwMI. 48 See the video link, "Edmonton Police Using Less Force with Mentally
Ill after University of Alberta Course," in the Media Links section at the encl of
this chapter.
A study of an integrated mobile crisis service in Halifax, involving clinicians and
police officers, found that there were improved response times despite an increase in
the use of this service by patients, families, and service partners and an increase in the
use of follow-up services by patients, as compared to a control group. 49
THE POLICE TREATMENT OF INDIGENOUS, VULNERABLE,
AND MARGINALIZED WOMEN
There are long-standing concerns with how the police treat Indigenous, vulnerable,
and marginalized women. These include how police services respond to women's
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allegations of sexual assault and the tragedy of missing and murdered lnd1genou~
women and girls.
"UNFOUNDED": THE POLICE INVESTIGATION OF SEXUAL
ASSAULT CASES
Sexual assault is one of the most underreported crimes. In Canada, it is estimated that
only 1 in 20 incidents of sexual assault are report to the police. 50 A major reason that
women do not report are not wanting to deal with the police and/or the belief that the
police would not take the allegation seriously. 51
When women do report, it is critical that the police take the allegations seriously
and conduct a thorough investigation. Care must be taken to ensure that the woman
is not revictimized by the investigative process. A high rate of dismissal of allegations
of sexual assault as "unfounded" suggests that police officers are not conducting
proper investigations. A case is generally considered by the police to be unfounded
when the evidence gathered during the investigation does not meet the standard
required to lay a criminal charge; the incident is reported but the victim chooses
not to participate in the investigation; or the complaint is determined to be a false
allegation. 52
While women may have positive experiences with the police, others do not. The
challenges faced by women who report having been sexually assaulted and the deficiencies in police investigations of the incidents were highlighted in a study that
found that one in five allegations of sexual assault were determined by the police to be
"unfounded." 53 The study found considerable variation among the provinces and territories in the percentage of sexual assault complaints that were cleared as unfounded
during the period 2010-14, ranging from 11 percent in British Columbia to 32 percent
in ew Brunswick (the national rate is 19 percent). 54
There were also differences between police services in the percentage of sexual
assault allegations that were dismissed as unfounded during 2010-14-for example,
Toronto at 7 percent, London at 30 percent, and Saint John , New Brunswick, at
51 percent. 55
The investigation of sexual assault cases in the Canadian north is particularly challenging. orthern communities have among the highest rates of sexual assault cases
determined by the police to be "unfounded ." 56 Language and culhual barriers between
community residents and the police, and the hesitancy of women to report sexual
assault to the police due to distrust of the police or fear of repercussions from their
family and community members, may serve as barriers to reporting. In addition, the
frequent transfers of officers from the communities hinders the development of relationships of trust between women and the police. 57
Following publication of the findings, many police services across the country
conducted audits of their sexual assault case files. The London Police Service, for
example, reviewed sexual assault cases recorded as unfounded between 2010 and
2016 ( = 1,030). The review resulted in the development of a victim-centred
framework for classifying sexual assault allegations that is focused on belief in the
victim. 58
Several police services have created provisions for independent oversight of how
cases involving allegations of sexual assault are investigated. In Calgary, for example,
the external reviews will be conducted by representatives from the sex-assault centres
in the city, medical personnel, and a person from the provincial Ministry of Status of
Women. The oversight program is modelled on a similar program in Philadelphia,
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CHAPTER 6: Police Strategies, Operations, and Engagement
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wl11ch resulted in a decrease in the number of sexual assault cases designated as
"unfounded" from 18 percent to 4 percent. 59
THE TRAGEDY OF MISSING AND MURDERED INDIGENOUS WOMEN
While the exact number of missing and murdered women and girls has not been established, it may range into the hundreds. 6 From its investigation, Human Rights Watch
concluded, "The failure of law enforcement authorities to deal effectively with the
problem of missing and murdered indigenous women and girls in Canada is just one
element of the dysfunctional relationship between the Canadian police and indigenous
people."61 A study in British Columbia that involved interviews with 42 Indigenous
women and eight Indigenous girls documented their experiences of abuse at the hands
of the police and the absence of police action to investigate cases of domestic abuse and
of missing and murdered women. 62
°
In 2016, the federal Liberal government announced a ational Inquiry into Missing
and Murdered Indigenous Women and Girls (http://www.mmiwg-ffada.ca). The
mission of the inquiry is to "learn the truth by honouring the lives and legacies of
Indigenous women, girls and members of the LGBTQ2S community. This encompasses three goals: (1) finding the truth ; (2) honouring the truth; and (3) giving life to
the truth as a path to healing." As part of its mandate, the commission will examine the
role of police investigations. The inquiry began hearing testimony from the families of
missing and murdered women and girls in summer 2017 and, despite organizational
challenges, was proceeding with its work as of late 2017.
One focus of concern is Highway 16, christened "The Highway ofTears," which runs
across the northern part of the province. Since 1969, 32 Indigenous and non-Indigenous
women have been murdered or gone missing on this stretch of highway, most while
hitchhiking. Despite the investigative efforts of an RCMP special unit, the majority of
the deaths remain unsolved. See the video link for the Highway of Tears in the Media
Links section at the encl of this chapter.
Among the challenges of investigating these cases are a lack of investigative capacities in police service, a lack of coordination among police services, the mobility of the
victims, and delays in reporting.63
For a case study of how police services in British Columbia failed vulnerable and
marginalized Indigenous and non-Indigenous women, see Police File 6.2.
There are persistent concerns with the manner in which some police officers treat
Indigenous women. A study in Saskatchewan that involved conducting interviews
with Indigenous women and girls ( = 64) about their lived experience documented instances of mistreatment and discrimination by the police, including excessive use of force and intimidation, degrading and abusive body and strip searches by
male police officers, and the failure of the police to protect women and girls
against violence. 64
T Abillboard on Highway 16 in northern British
Columbia. This road has been dubbed 'The
Highway of Tears· because of the number
of women who have gone missing or been
murdered there-currently at 32 since 1969.
The allegations against the officers, none of which has been proved
in court, included instances in which officers traded drugs, alcohol, and
money for oral sex; conducting "starlight tours" wherein women were driven
outside of town and abandoned in isolated areas; and physical assault. The
findings of this report were similar to those obtained in interviews with
Indigenous women ( = 42 ) and girls ( = 8) in British Columbia. 65 The
study documented their experiences of abuse at the hands of the police
and the absence of police action to investigate cases of domestic abuse and
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POLICE FILE 6.2
WILLIE PICKTON'S FARM: MASS MURDER AND A FAILURE
OF POLICE INVESTIGATION
During the mid- to late 1990s, a
number of sex trade workers from
Vancouver's Downtown Eastside began
to go missing. These women, many
of whom were addicted, disappeared
and did not make contact with family
or friends. One suspect who emerged
was a pig farmer, Robert "Willie"
Pickton, whose property was in the
rapidly developing suburban municipalThe pig farm of Robert 'Willie" Pickton in the Vancouverity of Coquitlam, a few kilometres from
area suburb of Coquitlam (note the adjacent subdivision
Vancouver. Coquitlam is policed under
of new houses)
contract by the RCMP.
Both the Vancouver Police Department and the Coquitlam RCMP were slow to initiate
investigations, and there were ongoing issues between the two police services, including a
lack of communication and information-sharing. Pickton was finally arrested in 2002, and the
search for evidence on his property over the next several years became the largest and most
expensive police investigation in Canadian history. Over a two-year period, 235,000 pieces of
DNA evidence were gathered, and the remains of 30 women were identified. It is estimated that
Pickton killed 65 women over a 15-year period on his farm. In 2007, Pickton was convicted of
second-degree murder of six women and given a life sentence with no possibility of parole for
25 years.
The Vancouver Police Department conducted an extensive internal review of its handling of
the Pickton investigation and identified a number of organizational factors that had hindered the
investigation.a The provincial government subsequently appointed a retired judge to conduct an
examination of the missing women's investigation.
Among the findings of the final report were that the police had failed to act to protect marginalized women and that there were systematic failures in the investigative process that delayed the
apprehension of Pickton.b More specifically, the police were criticized for a failure of leadership, a
failure to consider and pursue all investigative strategies, and inadequate staffing and resources.
Compounding these were the lack of a regional police service that would have facilitated communication and the sharing of information among police investigators.
• D. LePard. 2010. Missing Women Investigation Review. Summary Report. Vancouver: Vancouver Police Department.
http://vancouver.ca/police/media/2010/mw-summary-report.pdf.
b The Honourable W.T. Oppal (Commissioner). 2012. FORSAKEN: The Report of the Missing Women Commissioned
of Inquiry, Executive Summary. Victoria: Minister of Justice and Attorney General of British Columbia. httpJ/www
.missingwomeninquiry.ca/wp-contenVuploads/2010/10/Forsaken-ES-web-RGB.pdf.
of missing and murdered women. Watch the video, "Enquete Investigation into
Val-d'Or ow Available in English," listed in the Media Links section at the end
of this chapter.
In 2017, the province of Quebec announced that it was undertaking a comprehensive review of the treatment of Indigenous persons by the police, the criminal justice system, social services and health systems, and child protection agencies. 66 The
announcement followed the decision of Crown prosecutors not to charge six Quebec
provincial police officers in Val-d'Or for alleged abuse of Indigenous women. 67
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, nc t-'ULICE AND THE LGBTQ COMMUNITY
Historically, the relationship between the police and the LGBTQ communities
and relations were characterized by conflict and mistrust. Police officers were generally drawn from the working classes and held conservative , inflexible attitudes
toward non-heterosexual persons, views that were reinforced by a "macho" police
culture. Recall from the discussion in Chapter 3 that the police historically have
been involved in policing morality in enforcing laws that prohibited consensual
homosexual conduct. This led to police raids on gay clubs , cinemas, and bath
houses and the arrests of patrons in these facilities. The high-profile raids of gay
bath houses by the Toronto police in the early 1980s prompted legal action and
the beginning of a change in police attitudes and behaviour, as well as changes in
legislation. Today, it is not uncommon for chief constables to walk in Gay Pride
parades and for police services to engage with the LGBTQ communities on a
variety of issues.
Officers were often unsympathetic to gay victims, and police services were slow to
respond to crimes that were hate-motivated. The members of these communities were
often reluctant to report victimization, and this has been compounded by the attitudes
of the investigation officers. The most common experience with the police was negative, and there is often the perception that police services are not aware of the issues in
the LGBTQ communities. 68
Canadian police services have made efforts to improve the relationships with the
LGBTQ communities and , at the same time, increase awareness through training
programs for officers. The Windsor Police Service, in collaboration with the advocacy
group Equality for Gays and Lesbians Everywhere (EGALE), implemented a mandatory training program (the first of its kind in Canada) for its officers and staff, designed
to build awareness of homophobic violence and to facilitate the development of positive relationships with the LGBTQ communities. The Ottawa Police Service has a
liaison committee for the lesbian, gay, bisexual, and transgender communities. The
committee facilitates contact between the OPS and these communities and advocates
for issues of mutual interest (https://www.ottawapolice.ca/en/news-and-community/
GLBT-Liaison-Committee.asp). See the Media Link, "Andre Goh- Building the Asian
LGBT Community," at the end of this chapter.
The RCMP has produced a video featuring 20 LGBTQ officers directed toward
"building a bridge of understanding for youth undergoing similar experiences" and
"sharing the eventual joy ofknowing that life, indeed, does get better." See the Media
Link, "It Gets Better Canada," at the end of this chapter.
There has also been an increased focus by police services on hate committed
against persons, which are defined as "a criminal offence committed against a person
or property where the motivation is bias prejudice or hate, based on the victim's race,
national or ethnic origin , language, colour, religion, sex, age, mental or physical
disability, sexual orientation, or any other similar factor" (see Canadian Criminal
Code [R.S.C. 1985, c. C-46], sections 318/319 and 718.2 (a)(i)) . The Toronto
Police Service, for example, has a Hate Crime Unit and Hate-Crime Coordinators
who are located in each police division who are responsible for investigating hate
crime occurrences.
In 2017, the relations between the police and the LGBTQ communities were
challenged by a controversy over whether police officers should participate,
in uniform , in the annual Gay Pride parades that occur across the country. See
At Issue 6.2.
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AT ISSUE 6.2
SHOULD UNIFORMED POLICE OFFICERS BE ALLOWED TO PARTICIPATE IN GAY PRIDE PARADES?
As part of the improving relationships between the police and the
LGBTQ communities, police officers in a number of Canadian police
services for many years have participated in uniform in annual Gay
Pride parades.
In 2016, the group Black Lives Matter blockaded the Toronto Gay Pride
parade and refused to allow the parade to continue until the Gay Pride
organizers agreed to disallow uniformed police officers from participating
in future parades. This decision, and those of Gay Pride organizing
committees in other communities, divided the LGBTQ communities.a In
2017, Calgary Pride organizers announced that uniformed police were no
longer welcome to participate in the parade, stating that the policy was
an acknowledgement of "[t]he historical oppression and institutionalized
racism faced by queer/trans people of colour and Indigenous persons,
and the potentially negative association with weapons, uniforms, and
other symbols of law enforcement. "b The decision to ban uniformed
officers from Gay Pride parades divided the LGBTQ community, as
reflected in the following comments of one gay activist in Vancouver:
For those of us who are older and were part of that first
generation to come out, at some cost, we grew up in an
era where people were barred, lost their homes, jobs, were
subjected fairly regularly to beatings, and where the police
were not our friends. So a lot of people worked very hard to
build relationships, and to build trust with the law enforcement and the justice community.... To see that thrown
away is for us who come from that generation a tragic error
in strategy, and it flies in the face of the way that we gained
acceptance in society. c
I do not see this decision as exclusion. I see this decision
as accountability. I see this decision as supporting the most
racialized and marginalized members of our community....
I absolutely believe that accountability must be had, and
we cannot have the same people who are beating us, who
are harassing us, who're responsible for violent encounters
with us, dancing with us in revelry in uniform with their
guns on their side while being paid to participate.d (board
member, Pride Toronto)
Toronto's police chief and officers participate in the 2016
Gay Pride parade.
In 2017, members of the Toronto Police Service were invited by
New York's Gay Officers Action League to participate in uniform in the
NYPD Gay Pride March in that city, a move that a Toronto Black Lives
Matter leader described as "disgraceful. "e
QUESTIONS
1. What is your position on whether uniformed police officers should
be allowed to participate in Gay Pride parades?
2. Read the open letter sent by a gay Toronto police officer to Pride
Toronto at http://www.cbc.ca/news/canada/toronto/gay-cop-black
-lives-matter-letter-1.3663323. What is your response to letter?
• · b, c G. Hamilton. 2017, July 28. "Push to Bar Police from Pride Parade Divides
LGBTO," National Post. http://nationalpost.com/news/canada/a-tragic-error-growing
-push-to-exclude-police-from-pride-parades-divides-lgbtq-community. Material
republished with the express permission of Postmedia Network Inc.
d T. Simmons. 2017, January 23. "'Enough is Enough:' Pride Toronto Board Members
Explains Decision to Ban Police from Parade," CBC News. http://www.cbc.ca/news/
canada/toronto/pride-board-member-response-1.3947820.
• M. Rodriquez. 2017, May 25. "BLM Activist Calls NYPD Gay Pride March Invitation
to Toronto Police 'Disgraceful,'" mic.com. https://mic.com/articles/178051/blm
-activist-calls-gay-nypd-pride-march-invitation-to-toronto-police-disgraceful#
.aTQwyXKWk.
SUMMARY
This chapter has examined the various strategies that the police use to prevent and
respond to crime, with particular emphasis on the efforts of police services to build
sustainable partnerships with communities and to utilize the latest technologies for
detecting crimes and investigating cases. The traditional professional model of policing
has evolved into community-based strategic policing, which incorporates elements of
community policing with crime prevention, crime response, and crime attack strategies. This model of police work makes extensive use of data analysis, which allows
police policies and operations to be intelligence-led. A number of these have been
found to be effective in preventing and reducing levels of crime and social disorder,
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CHAPTER 6: Police Strategies, Operations, and Engagement
157
although some of the more aggressive police tactics have been criticized for being disproportionately focused on racialized groups.
There are challenges surrounding the relationship between the police and vulnerable/
at-risk groups. Police services have been strong advocates for addressing the needs of
PwMI with whom they have contact and participate in a variety of collaborative initiatives designed to address the unique needs of this group. The high rates of dismissal of
sexual assault complaints and the issues that surround police treatment of Indigenous
women illustrate the challenges that exist in the relationships between the police and the
community. Significant progress has been made in improving the relationship between
the police and the LGBTQ community although this has been put to the test in some
cities when uniformed police were prevented from participating in Gay Pride parades.
The increasing use of high technology in policing, including the use of unmanned
drones, has raised privacy issues and is another example of the tensions that exist
between the need to maintain order while ensuring the rights of citizens.
KEY POINTS REVIEW
1. Most police services continue to use crime rates and clearance rates as measures of
performance and developing measures of police performance that capture the variety of
activities of the police has proven to be a challenge.
2. The traditional (or professional) model of police work is based on random patrol , rapid
response, and reactive investigation .
3. The community policing model is premised on the three Ps: prevention, problem-solving, and partnership.
4. Community-based strategic policing is the predominant model in Canadian policing in
the early 21st century.
5. Police services are increasingly adopting new technologies to improve their effectiveness.
6. Research studies have found strong community support for increased visibility and
accessibility of the police, including foot patrol and that community policing has the
potential to increase citizens' feelings of safety and to increase police legitimacy.
7. Police officers often participate in restorative justice programs, including circle sentencing and family group conferencing.
8. Recent years have witnessed the rise of groups such as Anonymous and Creep Catchers
that use the Internet to become involved in cases that they perceive the criminal justice
system has not adequately addressed.
9. There are a variety of primary and secondary crime prevention programs, some of which
have proven successful.
10. Police services are involved in a wide range of programs and partnerships with the community, although there are often challenges in developing and sustaining partnerships.
11 . Many of the crime response and crime attack strategies used by the police have been
shown to reduce crime and citizens' fear of crime.
12. There are increasing concerns with how the police treat Indigenous women and vulnerable and marginalized women.
13. The large number of cases involving alleged sexual assault that were dismissed as
"unfounded" by police services was the catalyst for revising police policy and practice.
14. The tragedy of missing and murdered Indigenous women has raised issues related to
police treatment of Indigenous women.
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15. In the case of the mass murderer Willie Pickton, the police were found to have tauea
to act to protect marginalized women, and there were systematic failures in the investigative process.
16. While the relationship between the LGBTQ community and the police historically
was marked by con Aict and mistrust, police services have made significant progress in
improving relationships with the LGBTQ community.
KEY TERM QUESTIONS
I. What role do clearance rates and crime displacement play in discussions of measuring
police performance?
2. Compare and con trast the professional model of policing, community policing, and
community-based strategic policing.
3. What role do intelligence-led policing, Compstat, and predictive policing play in
community-based strategic policing?
4. Define and discuss primary and secondary crime prevention programs and note the
effectiveness of th ese initiatives.
5. What are tertiary crime prevention programs, and what is an example of this approach?
6. Describe the broken windows approach, zero-tolerance policing, quality-of-life
policing, and problem-oriented policing (POP), and discuss their effectiveness in
reducing crime and disorder.
7. Describe the crime attack strategies used by police an d the effectiveness of th ese
approaches.
CRITICAL THINKING EXERCISE
Critical Thinking Exercise 6.1
"To Drone or
ot to Drone ... "
Assume that your municipality is holding a referendum on whether or not the local police
service should be allowed to use drones in police operations.
Your Thoughts?
I. Would you vote in favour of allowing the police to use drones, or against?
2. If you would vote in favour, what restrictions, if any, would you place on how drones
were used?
3. What oversight structures would you put in place? If you voted against the police being
able to use drones, what are the primary reasons for your position?
CLASS/GROUP DISCUSSION EXERCISE
Class/Group Exercise 6.1
The Experience of Women Who Report Being the Victim of Sexual Assault
Access the article, "What It's Like to Report Sexual Assault," by R. Doolittle, Globe and
Mail, March 17, 2017, at https://www.theglobeandmail.com/news/investigations/what-its
-like-to-report-a-sexual-assau l t-36-people-share-their-stories/article34 3383 5 3.
NEL
CHAPTER 6: Police Strategies, Operations, and Engagement
159
Your Thoughts?
1. After reading the stories of the women, what would you identify as the common themes
in their experience with the police?
2. What were the features of the cases in which women had a positive experience with the
police?
MEDIA LINKS
"How Predictive Policing Software Works," The Verge , February 3, 2016, https://www
.youtube.com/watch?v=YxvyeaL7 1EM
"Amanda Todd's Story: Struggling, Bullying, Suicide, Self-Harm," October 11, 2012,
https://www.youtube.com/watch?v=ej 7afkypUsc
"Amanda Todd's Final Video (4 Hours Before Death) Unseen Footage," October 21 , 2012,
http://www. youtube.com/watch?v=wjvq23sPrHA
"#OpJustice4Rehtaeh Statement Anonymous," Anonymous Canada, April 10, 2013 ,
https://www.youtube.com/watch?v=7 _D_zvizzKA
"Assertive Outreach Team Looks to Fill in Critical Mental Health Gap," ovember 14,
2014, https://globalnews.ca/news/167 3094/assertive-outreach-team-looks-to-fill-in
-critical-men ta I-heal th-gap
"Highway of Tears," CBS 48 Hours, May 28, 2016, https://www.cbsnews.com/videos/
highway-of-tears-3
"Enquete Investigation into Val-d'-Or ow Available in English," CBC ews, December 12,
2015, h ttp://www.cbc.ca/news/i ndigenous/i nvestiga tion-i n to-val-d-or-now-ava ila ble-i n
-english-1.3 3625 34
"Who Killed Alberta Williams?" CBC
missingandmurdered/podcast
ews, October 20, 2016, http://www.cbc.ca/
"Edmonton Police Using Less Force With Mentally Ill After University of Alberta Course,"
Edmonton Sun , March 18, 2013, http://edmontonsun.com/2013/03/18/edmonton
-police-using-less-force-with-the-mentally-ill-after-university-0f-albe rta-course/wcm/
0ab36288-828a-4 l 85-b0a2-66423 5cd3c42
"Police Surveillance Drones Coming Soon to Local Law Enforcement," January 25, 2011 ,
http://www.youtube.com/watch?v= W3DLfXHCXU
"Predator Tries to Destroy the Evidence and Gets Arrested," June 22, 201 7, https://www
.youtube.com/watch?v= 7H j h2aQPT0
"Andre Goh-Building the Asian LGBT Community," Ontario Human Rights
Commission, August 9, 2013 , https://www.youtube.com/watch?v=yzF50RIGeb8
"It Gets Better Canada," November 2, 2010, https://www.youtube.com/watch?v=5p
-AT18d91U
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26. DRPA. 2016.A Renewed Approach to Policing in Indigenous
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28. R.H. Burke. 1998. "The Socio-political Context of Zero
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161
29. B.E. Harcourt and J. Ludwig. 2006. "Broken Windows:
New Evidence from 1ew York City and a Five-City Social
Experiment," The University of Chicago Law Review, 73 ( I),
271-320.
30. J.C. Hinkle and D. Weisburd. 2008. "The Irony of Broken
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31. T. Romeanes. 1998. "A Question of Confidence: Zero
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32. A. Gabbat. 2013, ovember 14. "Stop and Frisk: Only 3%
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33 . J. Goldstein. 2013, August 12. "Judge Rejects ew York's
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45. A.C. Watson and A.J. Fulambarker. 2012. "The Crisis
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46. P. Baker. 2014, ovember 14. "Assertive Outreach Teams
Looks to Fill in Critical Mental Health Gap," Global ews.
h ttps ://gl oba Inews .ca/news/ 16 7 3094/asse rti ve-ou treac h
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May Prevent Arrests of People with Mental Illness," Police
Practice and Research, 12(3), 265-272.
36. W. Gillis. 2016, June 14. "Toronto Police Anti-Violence
Unit to Be Restructured," Toronto Star. https://www
.thestar.com/news/crime/2016/06/14/toronto-police-anti
-violence-unit-to-be-restructured.html.
48. P. Roth. 2013, March 18. "Edmonton Police Using Less
Force with the Mentally lll After University of Alberta
Course," Edmonton Sun. http://edmontonsun.com/2013/03/
18/edmonton-pol ice-using-less-force-wi th-th e-mentall y-i ll
-after-university-of-a Iberta-cou rse/wc m/0a b 362 88-82 Sa
-4185-b0a2-66423 5cd3c42.
37. J. O 'Brien. 2014, March 31. "Mental Health Calls Cost
London Cops More Than $14 Million a Year - Roughly
15% of Their Budget," London Free Press. http://www
.lfpress.com/2014/0 3/30/the-calls-are-costing-london-cops
-about-14-million-a-year-rough ly- 15-of-their-budget.
49. S. Kisely, L.A. Campbell, S. Peddle, S. Hare, M. Psyche, D.
Spicer, and B. Moore. 2010. "A Controlled Before-and-After
Evaluation of a Mobile Crisis Partnership Between Mental
Health and Police Services in ova Scotia," Canadian
Journal of Psychiatry, 55(10), 662-668.
38. F. Wilson-Bates. 2008. Lost in Transition: How a Lack of
Capacity in the Mental Health System Is Failing Vancouver's
Mentally Ill and Draining Police Resources. Vancouver:
Vancouver Police Department. https://vancouver.ca/police/
assets/pd fl reports-pol icies/vpd-lost-i n-tra nsi tion. pdf.
39. The Honourable F. Iacobucci. 201 4. Police Encounters with
People in Crisis. Toronto: Toronto Police Service, p. 6. http://
www. toron to pol ice.on .ca/pub] ica tions/fi les/reports/pol ice
_encounters_with_people_in_crisis_2014.pdf.
40. Ibid.
41. R.S. Engel and E. Silver. 200 I. "Policing Mentally
Disordered Suspects: A Reexamination of the Criminalization Hypothesis," Criminology, 39(2), 225-252.
162
Part II: The Police
50. Statistics Canada. 2017, Jul y I I. "Self-Reported Sexual
Assau lt in Canada, 2014," The Daily. https://www.statcan
.gc.ca/daily-quotidien/170711/dq 17071 la-eng.pdf.
51. Ibid.
52. London Police Service. 2017. "Review of ' Unfounded'
Sexual Assault Cases." https://www.londonpolice.ca/en/
about/review-of-unfounded-sexual-assault-cases.aspx.
53. R. Doolittle. 2017, February 3. "Why Police Dismiss 1 in
5 Claims of Sexual Assault as Baseless," Globe and Mail.
h ttps://www. th eglo bea nd ma ii .com/news/investigations/
unfounded-sexual-assaul t-canada-main/art:icle3 3891309.
54. Ibid .
NEL
"-
55. R. Doolittle, M. Pereira, L. Blenkinsop, and J. Agius. 2017,
February 3. "Will the Police Believe You?" Globe and Mail.
h ttps://www. th eglobea nd ma iI.com/news/investigations/
com pa re-unfou nded-sex-assa ult-rates-across-ca nada/
article33855643.
56. R. Doolittle. 2017, February 28. "The Challenge of
Handling Sex Assault in Canada's orth," Globe and Mail.
https://www.thegloheandmail.com/news/investigations/
the-cha Ilenges-of-ha nd Ii ng-sex-assa ult-in-ca nadas-north/
article34 l 5954 3.
57. Ibid.
58. London Police Service, "Review of 'Unfounded' Sexual
Assault Cases."
59. R. Doolittle. 2017, May 18. "Calgary Begins Canada's First
External Audit of Sexual-Assault Case Files," Globe and Mail.
https://www.theglobeandmail.com/news/national/unfounded
-ca lga ry-beg i n s-ca n adas-fi rst-externa 1-a u di t-o f-sexua I
-assault-case-files/article3505 5413.
60. Human Rights Watch. 2013. Those Who Take Us Away.
Abusive Policing and Failures in Protection of Indigenous
orthern British Columbia ,
Women and Girls in
Canada. Toronto: Author, p. 7. http://www.refworld.org/
docid/5209e6e94 .html.
62. Ibid.
63. Vancouver Police Department. 2011. The Tragedy of Missing
and Murdered Aboriginal Women in Canada. We Can Do
Better. A Position Paper by the Sisterwatch Project of the
Vancouver Police Department and the Women's Memorial
March Committee. Vancouver: Author. https://vancouver
.ca/po Ii ce/assets/pd f/reports-pol ici es/missing-murdered
-a borigi nal-women-canada-report. pdf.
64. Ontario Human Rights Commission. Under Suspicion:
Research and Consultation Report on Racial Profiling in
Ontario.
65. Human Rights Watch. Those Who Take Us Away.
66. B. oel. 2017, April 3. "Anger and Hope in Val-d'Or," Vice
ews Canada. https://news.vice.com/story/anger-and-hope
-in-val-dor.
67. B. eill. 2016, ovember 15. " o Charges Against Quebec
Provincial Police in Val-d'-Or Abuse Scandal," CBC ews.
http ://www. c be. ca/news/ca nada/mon treal/pol ice-abuse
-charges-val-cl-or-I. 3852390.
68. K.B. Wolff and C.L. Cokely. 2007. '"To Protect and To
Serve?' An Exploration of Police Conduct in Relation to
the Gay, Lesbian, Bisexual, and Transgender Community,"
Sexuality and Culture, 11 (2), 1-23.
61. Ibid.
NEL
CHAPTER 6: Police Strategies, Operations, and Engagement
163
Chapter 7: The Structure and Operation of the Criminal Courts
Chapter 8: The Prosecution of Criminal Cases
Chapter 9: Sentencing
The criminal courts occupy a strategic position in the Canadian criminal
justice system. Important decisions are made at all stages of the court process: the decision of Crown counsel to take a case forward; plea negotiations
between the Crown and defence lawyers that may result in a guilty plea in
exchange for certain considerations, including dropping some charges; the
decisions of judges and juries; and perhaps the most important decision in
the entire justice system, whether the charged person is guilty.
In this part, we'll consider the structure and operation of the criminal
courts, as well as how cases are processed through the criminal courts.
Chapter 7 sets out the structure of the criminal courts in Canada, including
the specialized problem-solving courts that have been created in recent years.
The Row of cases through the criminal courts is examined, and the issues
surrounding the oversight and accountability of the judiciary are considered.
Chapter 8 examines the prosecution of criminal cases, beginning with the
pre-trial process. Among the topics discussed are the role of Crown counsel,
the laying of an information and laying of a charge, the ways in which an
accused can be compelled to appear in court, plea negotiations, the trial, and
other topics.
Chapter 9 considers sentencing in the criminal courts, including the purpose and principles of sentencing, the discretion exercised by judges, and
Indigenous peoples and sentencing.
165
CHAPTER 7
THE STRUCTURE AND OPERATION
OF THE CRMINAL COURTS
After reading this chapter, you should be able to
• Discuss the structure and operation of the criminal courts.
• Describe specialized problem-solving courts and their effectiveness in addressing
the needs of vulnerable accused persons.
• Discuss the operation and objectives of Indigenous courts.
• Describe the challenges that surround providing judicial services in remote areas
of the country by the circuit courts.
• Identify and describe the professionals who comprise the courtroom workgroup.
• Describe the process by which judges are appointed in Canada and discuss the
issues surrounding this process.
• Identify and discuss the issues surrounding judicial ethics and accountability.
• Discuss the issue of case delay and the impact of the Supreme Court of Canada
decision in R. v. Jordan .
THE CRIMINAL COURTS IN CANADA
The criminal courts play an important, multifaceted role in Canada's criminal justice
system , yet for many Canadians, the courts remain something of a mystery. This
vagueness is due, in some measure, to the fact that the deliberations of judges and
the activities of Crown counsel and defence lawyers are much less visible than the
activities of the police.
Although the process for disposing of cases has changed little over the past two
centuries, the cases coming into the courts are more complex than they once were,
the legal issues are more challenging, and workloads are heavier. Many observers
attribute these increased workloads and the resulting strains to the impact of the
Charter of Rights and Freedoms.
The courts are responsible for determining the guilt or innocence of accused
persons and for imposing an appropriate sentence on those who are convicted. They
are also responsible for ensuring that the rights of accused persons are protected;
this often involves monitoring the activities of the various agents of the criminal
justice system (including the police and systems of corrections). The decisions of
the courts reflect ongoing efforts to balance the rights of the accused with the need
to protect society.
The principle of iudicial independence is viewed as being essential to the proper
functioning of the courts. This principle holds that citizens have the right to have their
cases tried by tribunals that are fair, impartial, and immune from political interference
(more on judicial independence later in the chapter).
Canada does not have a uniform court system. This often leads to considerable
confusion when the various provincial/territorial and federal courts are discussed.
This chapter attempts to clearly and concisely describe the system of courts; that said,
students are well advised to familiarize themselves with the structure and names of
the various courts in their own jurisdiction. Each province and territory maintains a
website that provides detailed information on its court system.
With the exception of unavut, there are four levels of courts that deal with criminal cases: provincial/territorial courts, provincial/territorial superior courts, provincial
appellate courts, and the Supreme Court of Canada (SCC). Nunavut has a unified,
or single-level, court, the unavut Court of Justice, in which the powers of the lower
courts have been comb ined into one superior court where all judges can hear all types
of cases. The SCC is the highest court for all jurisdictions. Figure 7 .1 provides an
outline of the Canadian criminal court system.
In Figure 7.2, the court system in the province of Ontario is provided as an example
of a provincial court structure. The provincial court system in Ontario has two divisions:
the Superior Court of Justice and the Ontario Court of Justice. Each of these divisions
has a number of other courts.
Figure 7.3 presents an overview of the cases completed in adult criminal courts
in 2014-15. ote the large percentage of cases that are related to "Administration of
Justice Offences." Figure 7.4 contains statistics from adult criminal courts in Canada
for 2014-15. A detailed breakdown of the procedure in criminal cases is presented
in Chapter 8 (Figure 8.1 ). The information in Figure 7.3 indicates that non-violent
offences represented more than three-quarters (77 percent) of all cases completed in
adult criminal court in 2014-15 . Overall, approximately two-thirds (63 percent) of all
cases completed in adult criminal court resulted in a finding of guilt. Of those cases that
went to trial, the acquittal rate was 4 percent. 1
NEL
CHAPTER 7: The Structure and Operation of the Criminal Courts
167
Supreme Court of Canada
• established by Parliament
• became the final court of appeal for criminal cases in 1933
and for civil cases in 1949
• has judges who are federally appointed by the prime minister
• operates under the Supreme Court Act
• is the final court of appeal for criminal and civil law
• FIGURE 7.1
Canada's Criminal Court System
Provincial and Territorial Courts of Appeal
• are administered by the provinces and
territories
• have judges who are federally appointed
• hears appeals from decisions in superior
courts and provincial and territorial courts
• some jurisdictions have a single court with a
trial division and an appellate rather than a
court of appeal and superior court
Provincial and Territorial Superior Courts
• administered by the provinces
• have judges who are federally appointed
• try the most serious cases
• are the court of first appeal for the provincial
and territorial courts
Provincial and Territorial Courts
• are administered by the provinces and territories
• have judges who are provincially or territorially appointed
• hear cases involving federal or provincial and territorial laws
(exception is Nunavut where the Court of Justice deals with both
territorial and superior court cases)
• have jurisdiction over most criminal offences, traffic violations,
and provincial or territorial regulatory offences (i.e., fish and wildlife)
• hear preliminary hearings in serious cases to determine whether
there is sufficient evidence to proceed to trial
Federal Court of Appeal
• established by Parliament
• hears appeal from the federal courts
• has judges who are federally appointed
• has some limited criminal jurisdiction
Federal Court
• established by Parliament
• has judges who are federally appointed
• hears matters subject to federal statutes
• has some limited criminal jurisdiction
THE PROVINCIAL/TERRITORIAL COURT SYSTEM
There is some variation in the specific names given to the provincial courts across the
country; even so, the system is much the same in all jurisdictions. In every province and
territory, except Nunavut, as noted earl ier, the court system has hvo levels: provincial
and superior.
The provincial and territorial courts are the lowest level of courts; nearly all criminal
cases begin and end in them. Their judges are appointed by the provinces and territories, which also fund these courts and have jurisdiction over them. Provincial and
territorial court judges sit without juries. These courts also hear cases under the Youth
Criminal Justice Act (S.C. 2002, c. 1), as well as cases involving alleged offences against
provincial statutes. Provincial and territorial courts may also include family courts and
small claims courts. Provincial/territorial court judges (along with justices of the peace)
168
Part Ill: The Criminal Courts
NEL
ONTARIO COURT OF JUSTICE (OCJ)
Provincially Appointed Judges and Justices of the Peace
Criminal Law: Less serious indictable offences
(s. 553 of the Criminal Codt!J and summary
offences are heard by one judge.
Family Law: Custody, access and support (not
during divorce), enforcement of child support, child
protection, and adoption matters are heard {where
there is no Unified Family Court).
Superior Court of Justice
Federally appointed judges
I
Drug Treatment Court: This specialist court
provides court-supervised treatment for individuals
addicted to drugs who have been charged with
drug-related offences.
I
Mental Health Court: Specialized court for persons
with mental health issues who have been charged
with a crime. Mental health workers, case managers,
and psychiatrists are involved in determining the
appropriate treatment or sentence.
I
Bail Court: Determines whether a person charged
with crime(s) should be held in jail until his or her
trial is completed. JPs preside over bail hearings.
I
Domestic Violence Court This court hears
cases involving domestic violence.
I
Gladue Court Throughout Canada, judges take into
account the unique circumstances of Indigenous accused
and Indigenous attenders (includes status and non-status
Indians, Melis, and Inuit), based on the Gladue decision.
Some areas have these specialist courts for Indigenous
people facing criminal charges.
I
Youth Court: Presided over by Youth Court judges,
hears cases of youths charged under the
Youth Criminal Justice Act.
COURT OF APPEAL FOR ONTARIO
Federally appointed judges hear appeals from the Superior Court of Justice. Appeals from the
Court of Appeal are heard by the Supreme Court of Canada
Family Law: Where there is no Unified Family
Court, individual judges hear divorce and property
issues, support, and custody and access matters.
Appeals: Appeals of summary offences and family
matters from the OCJ are also heard by the
Superior Court of Justice.
Unified Family Court: Hears all family matters
including divorce (federal) and separation (provincial),
presided over by a single judge.
Divisional Court: Hears appeals of interim and final
orders and judicial reviews of administrative tribunals,
government agencies and boards, and appeals of civil
cases where the monetary values is less than $50,000.
Criminal Law: Major offences (s. 469, Criminal Codt!J
and hybrid offences are heard by a judge and jury unless
the parties consent to judge alone.
Small Claims Court: Civil claims of less than
$25,000 are heard by a judge or in some cases a
master.
• FIGURE 7.2
The Ontario Court System
Source: Ontario Justice Education Network. n.d. "Handout: The Courts of Ontario Flowchart." httpJ/ojen.ca/wp-content/uploads/The-Courts-of
-Ontario-Flowchart.pd!. Reprinted by permission of The Ontario Justice Education Network.
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CHAPTER 7: The Structure and Operation of the Criminal Courts
169
Crimes against the Person
(homicide, robbery, assault, etc.)
Crimes against Property
(theft, break and enter, fraud, etc.) ----_
Other Criminal Code Offences
(weapons, prostitution, etc.)
Administration of Justice Offences
(fail to appear, breach of probation,
unlawfully at large, etc.)
Criminal Code Traffic Offences
(impaired driving, etc.)
• FIGURE 7.3
Cases Completed in Adult Criminal
Court, by Type of Offence, 2014---15
Source:A. Maxwell. 2017. "Adult Criminal Court
Statistics in Canada, 2014/2015,• Juristat, 37(1 ).
Statistics Canada Catalogue no. 85-002-X. Ottawa:
Minister of Industry, p. 18. http://www
.statcan.gc.ca/ pub/85-002-x/2017001/article/
14699-eng.pdf.
Other Federal Statute Offences
(drug possession, drug trafficking, etc.)
328,028 Completed Cases
(includes 992,635
completed charges)
326,713
Provincial Court
Cases
(99.6%)
1,315
Superior Court
Cases
(0.4%)
Decision
207,528
13,162
Acquitted
(4%)
Guilty
(63%)
103,980
Stayed/
Withdrawn
(32%)
3,358
Other
(1%)
,.,. ." I
• FIGURE 7.4
8,430
Conditional
Sentence
(4%)
76,340
Custody
(37%)
30
Median Length
of Custody
(days)
89,151
Probation
(43%)
365
Median Length
of Probation
(days)
64,964
Fine
(31%)
500
Median
Amount
of Fine($)
121
Median Length of Cases (days)
170
Part Ill: The Criminal Courts
4,739
Restitution
(2%)
149,421
Other
(72%)
Adult Criminal Court Statistics in
Canada, 2014---15
Questions: (1) What are some of the more
significant features of the data presented in
Figure 7.4? (2) What do the data indicate
about the flow of cases through the courts?
Source: A. Maxwell. 2017. "Adult Criminal Court
Statistics in canada, 2014/2015," Juristat, 37(1 ).
Statistics canada catalogue no. 85-002-X. Ottawa:
Minister of Industry, p. 4. http://www.statcan.gc.ca/
pub/85-002-x/2017001 /articie/14699-eng.pdf.
NEL
may preside over preliminary inquiries, which are held to determine whether there is
sufficient evidence to warrant a trial.
Historically, the provincial and territorial courts dealt with less serious cases. This limit
ha~ changed in recent years, however; the judges in these courts now hear increasingly
senous offences. As well, provincial/territorial court judges are confronted with specialized
populations that may strain court resources and challenge judges to apply more appropriate
sentences (see Chapter 9). Some observers now argue that the traditional distinction between
the provincial/territorial courts and the higher-level superior courts has blurred somewhat
in recent years. For example, research has found that although the superior courts hear proportionately more serious offences and more cases involving multiple offences, provincial
and territorial courts hear more of these cases in terms of absolute numbers. 2
PROVINCIAL AND TERRITORIAL SPECIALIZED
PROBLEM-SOLVING COURTS
The current criminal justice system is Hawed and people get misguided in it, because
once they're labelled an addict or a drug criminal, it's hard for them to claw their way
back into society. That's why we do what we do . ... There's no reason why someone
who's been charged with a crime who suffers from a drug problem can't be offered
rehabilitation in tandem with their proceedings.
-addiction clinician, Drug Court3
Problem-solving courts
Specialized courts that are designed to
divert offenders with special needs from
the criminal justice system.
Therapeutic justice
An approach in problem-solving courts
that uses the law and the court's
authority as change agents to promote
the health and well-being of offenders,
while ensuring that their legal rights are
protected and that justice is done.
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In recent years, a number of specialized, problem-solving courts have been developed that
attempt to divert offenders with special needs from the criminal justice system. These specialized courts include community courts, drug courts, and mental health courts, among
others. In addition, several provinces have created courts specifically for Indigenous persons.
These courts operate on First ations reserves, in the north, and in urban centres.
The three defining attributes of problem-solving courts are (1) a focus on addressing
the underlying problems of offenders, victims, and communities; (2) interagency and
interdisciplinary collaboration; and (3) accountability to the community. 4
These principles are complementary to those of restorative justice. Unlike traditional
courts, these community-based courts have the potential to improve the quality of
life in communities, increase resident familiarity with the court process, and increase
community satisfaction with the response to persons in conflict. 5
The intent of these problem-solving courts is to shift from an adversarial or legalistic
approach to one centred on treatment and rehabilitation. The focus is on addressing the
underlying issues that contributed to criminal offending and developing an intervention
plan to address the behaviour as well as the circumstances that contributed to it, while
also holding offenders responsible for their behaviour. 6 Unlike the traditional court
process, problem-solving courts involve offenders as active participants in addressing
their behaviour and needs.
All of these courts are designed to address the revolving door syndrome that affects
many offenders, facilitate a collaboration among justice and social service agencies,
and formulate and implement problem-solving interventions. Many of the principles
of restorative justice are reflected in the practice of problem-solving courts. Table 7.1
provides a comparison of traditional courts with problem-solving courts.
Specialized problem-solving courts incorporate the concept of therapeutic justice,
which involves the use of the law and the authority of the court as change agents in
promoting the health and well-being of offenders while ensuring that their legal rights
are protected and that justice is done .7
CHAPTER 7: The Structure and Operation of the Criminal Courts
171
TABLE 7.1
TRADITIONAL COURTS COMPARED WITH PROBLEM-SOLVING COURTS
r
Traditional Court Accountabll"
Problem-Solving Court Accountability
Use of resources within the court system
(probation officers)
Collaboration with professionals outside of the court system (e.g., drug treatment staff, victim
services, employment programs)
Impersonal, procedural
Personal, individualized
Little involvement outside of the court (case
handed off by judge, no further involvement)
Involvement outside of the court (monitoring, continued supervision)
Focus on processing cases through the system.
Focus on effectiveness of methods (evaluating court effectiveness and if outcomes are being reached
Focus on adjudicating
Focus on problem-solving
Communication through lawyers
Judge communicates directly with "client"
I
I
I
Sources: Criminal Justice. n.d. Prob/em-Solving Courts. http://criminal-justice.iresearchnet.com/system/problem-solving-courts/4; L. Eaton and L. Kaufman. 2005, April 26. "In ProblemSolving Court, Judges Turn Therapist," New York Times. http://www.nytimes.com/2005/04/26/nyregion/in-problemsolving-court-judges-turn-therapist.html.
Offender participation in problem-solving courts is voluntary, but there is considerable variation among the problem-solving courts in the types of cases that are
handled, eligibility criteria, the sanctions that are imposed , the length and type of
supervision, and the involvement of justice, social service, and community agencies. 8
Some take only offenders who have committed less serious crimes, while others
accept more serious offenders. The Drug Treatment Courts (DTCs) in Canada, for
example, will accept only those offenders who have committed non-violent, drugrelated offences. 9 Some courts operate at the pre-plead level, while others require
an admission of guilt and the acceptance of responsibility. All of the courts have
established screening protocols to ensure that only those persons who meet specific
criteria are selected.
To illustrate, Drug Treatment Courts (DTCs) target the needs of addicted
persons in conflict with the law; mental health courts attempt to address the
needs of mentally ill persons who come into conflict with the law; a Downtown
Community Court in Vancouver focuses on offenders in the highly troubled
Downtown Eastside area of the city; in Toronto, the Integrated Violence Court
handles both criminal and family law cases; and there is an Indigenous community
court in Toronto .
In these courts, offenders may avoid incarceration by agreeing to abide by specified
conditions. In DTCs, for example, the offender may agree to participate in a drug-abuse
treatment program and to submit to regular drug testing. IO
In Yukon, the Community Wellness Court (CWC) focuses on persons with mental
health issues, addiction issues, and other factors that may be related to their offending.
Participation by offenders in the CWC is voluntary, and they must admit guilt. Persons
who have committed sex offences and serious and violent offences are excluded from
the court. The CWC incorporates the principles of therapeutic justice and restorative
justice and offers supervision that is culturally relevant, while addressing the needs of
the victim and the community. A key feature of the CWC is providing offenders with a
support network during and after the program and sentencing.
The CWC has had an impact on the sentencing in Yukon. In one case, both
the territorial court and the CWC agreed to let two men afflicted with fetal alcohol
spectrum disorder (FASD) remain in supportive housing rather than being sent to jail
11
for their crimes. This decision was also supported by the federal prosecutor.
172
Part Ill: The Criminal Courts
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In 2017, the city of Buffalo, ew York, opened the first court for opioid addicts.
Watch the video, "Inside the First Court Designed to Keep Opioid Addicts Alive," listed
in the Media Links at the end of this chapter.
THE EFFECTIVENESS OF SPECIALIZED COURTS
She makes me feel like she really cares. I mean, she's always complementing me
on doing everything that I'm supposed to be doing, and she lets me know that she's
aware of what I am doing, and I feel like I'm a name, not a number. 12
Assessing the effectiveness of various types of specialty courts is difficult because of the
wide variations in admissions criteria, services provided, and how success is measured_ 13
Ongoing issues with many of the courts are high rates of non-compliance, the conditions imposed by the court, and non-completion of programs (84 percent in one study
of the Toronto Drug Treatment program). 14 Many of the courts have had difficulty
attracting Indigenous men and women. 15
The use of specialized courts by visible minorities is also unknown, as are the
factors that may facilitate or hinder the effectiveness of these courts in a diverse
community. Canadian and U.S. research studies suggest that persons who do not
have a stable residence, who have substance abuse issues, and who have a severe
mental illness were less likely to complete or partially complete a program. 16 The
relationship between gender and ethnicity and program completion has not been
examined in Canada.
There are also the concerns that the therapeutic approach of the problem-solving
courts compromises the fact-finding mandate of the court and that judges may assume
the role of therapist, which is outside of their mandated judicial role. 17
Despite these concerns, there is evidence that these courts may be an effective alternative to the traditional criminal justice system. 18 The courts appear to be most effective
in reducing reoffending when the principles of risk, needs, and responsivity (discussed
in Chapter 10) are followed- that is, when attention is given to selecting offenders
who are most suited for the program in terms of their level of risk, their needs, and their
motivation or ability to complete the requirements imposed by the courts. 19 ,20
Table 7.2 provides a brief summary of the objectives, processes, and effectiveness of
specialized courts. ate that much of the research has been conducted in the U.S. and
that studies vary considerably in their design and in the data sets used for the analysis.
So caution should be exercised in generalizing these findings.
INDIGENOUS COURTS
Section 718.2(e) of the Criminal Code (R.S.C . 1985 , c. C-46) requires judges to consider sentencing options other than incarceration, particularly for Indigenous offenders.
The principle that the judiciary should make efforts to explore alternative sentencing
options-including the use of restorative justice-was affirmed by the Supreme Court
of Canada in R. v. Gladue ([ 1999] 1 SCR 688). To address the needs of Indigenous
offenders more effectively, several provinces have created courts specifically for
Indigenous people.
First ations communities are becoming increasingly involved in developing community-based courts that are centred on traditional Indigenous spirituality and cultural
practices.21
The rise of Indigenous courts was also given impetus by the Calls to Action of
the Truth and Reconciliation Commission to eliminate the overrepresentation of
Indigenous peoples in custody using alternative justice mechanisms .22
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CHAPTER 7: The Structure and Operation of the Criminal Courts
173
TABLE 7.2
THE OBJECTIVES, PROCESS, AND EFFECTIVENESS OF SPECIALIZED COURTS
I
Type of
I Outcomes
Court
Objective/Process
Mental
Health
Court
(MHC)
Reduce the criminalization of the mentally ill;
operate at pre- and post-charge stage
Drug
Treatment
Court (OTC)
Address alcohol/drug addiction of offenders
and reduce reoffending; treatment-oriented
approach with specified conditions (e.g.,
abstinence)
May significantly reduce participants' drug use and criminal offending during and
following program completion;e helps even offenders with lengthy criminal records/
offenders who do not complete the program tend to lack family support, have
unstable housing, and lack motivation to complete the program;g per-client costs are
less than in traditional courts;h high rates of non-completion; women and Indigenous
persons less likely to participate and to completei
Domestic
Violence
Court (DV)
Stop the cycle of domestic violence; assist
victims, their families, and offenders; reduce
revictimization
Cases may be heard more quickly than in traditional court; potential increase in
guilty pleas; may reduce Crown stay of proceedings; evaluation of Yukon Domestic
Violence Treatment Option found low rates of re-assault, effectiveness in dealing with
domestic violence cases, but problems connecting with victims)
Reduce reoffending by 1oto 75 percent; can reduce the amount of time offenders
spend in custody, increase access to treatment services, and change life circumstances
(e.g., homelessness), particularly for persons who complete the program and "graduate";a
court personnel perceive that MHCs improve clients' lives, reduce reoffending, reduce
Criminal Court workloads, and hold offenders accountable;b an evaluation of the Calgary
Diversion Program for mentally disordered offenders found high rates of client satisfaction,
and a significant reduction in charges and court appearances and in the need for acute
care services;c potentially significant reductions in reoffending. An evaluation of the
Mental Health Court in St. John's, Newfoundland, found reduced rates of recidivism for
participants who completed the program.d
An evaluation of the domestic violence court pilot project in Sydney, Nova Scotia, found
strong support from all stakeholders, offender participation in treatment programs,
but challenges in engaging victims; however, changes in offender behaviour, rates of
reoffending, and rates of revictimization were not assessedk; an evaluation of the DV
Court pilot project in Moncion, New Brunswick, found that 69 percent (N = 478) of
offenders reoffended during the three-year pilot period but that the number of victims
accessing services increased throughout the pilot period. 1
Community
Wellness
Court
(CWC;
Yukon)
Established to address the needs of offenders
with alcohol and drug problems, mental health
issues, and other underlying issues that may
be related to their offending. Participation is
voluntary, and the offender must admit guilt.
Incorporates the principles of therapeutic
justice and restorative justice, and offers a
multifaceted approach to reduce reoffending,
while at the same time addressing the needs of
victims and the community.
An evaluation found that the CWC is a valuable alternative to the traditional criminal
court and was effective in meeting its objectives. Offenders who completed the
program felt that it was very helpful to them and provided an opportunity for them to
change life direction. A major challenge is the high rate of non-completion. m
I
• S. Lange, J. Rehm, and S. Popova. 2011. "The Effectiveness of Criminal Justice Diversion Initiatives in North America: ASystematic Literature Review," International Joumal of Forensic
Mental Health, 10(3), 200--214; R.O. Schneider. 2010. "Mental Health Courts and Diversion Programs: AGlobal Survey," International Joumal of Law and Psychiatry, 33(4), 201-206; C.M.
Sarteschi, M. G.Vaughn, and K. Kim. 2011 . "Assessing the Effectiveness of Mental Health Courts:AQuantitative Review," Joumal of Criminal Justice, 39(1 ), 12-20.
b
D.E. McNiel and R.L. Binder. 2010. "Stakeholder Views of aMental Health Court," International Joumal of Law and Psychiatry, 33(4), 227-235.
c C. Mitton, L. Simpson, L. Gardner, F. Barnes, and G. McDougall. 2007. "Calgary Diversion Program:ACommunity-based Alternative to Incarceration for Mentally 111 Offenders," Journal of
Mental Health Policy Economic, 10(3), 145-51 . https://www.ncbi.nlm.nih.gov/pubmed/17890831 .
d
D. Orr. 2017. "ACriminal or Therapeutic Justice System? Examining Specialized Treatment Courts," Criminal Law Quarterly, 64(1-2), 180--199.
' J. Roman. 2013. "Cost-Benefit Analysis of Criminal Justice Reforms," NIJ Journal, 272, 31-38. https://www.ncjrs.gov/pdfliles1/nij/241929.pdf.
Public Safety Canada. 2007. Toronto Drug Treatment Court Project. Ottawa: National Crime Prevention Centre. https://www.publicsafety.gc.ca/cnVrsrcs/pblctns/drgtrtmnt-trnVdrgtrtmnt
-trnt-eng.pdf.
(continued)
1
174
Part 11 1: The Criminal Courts
NEL
u B. Newton-Taylor, L. Gliksman, and J. Patra. 2009. "Toronto Drug Treatment Court: Participant Intake Characteristics as Predictors of 'Successful' Program Completion," Journal of Drug
Issues, 39(4), 965-988.
h M.W. Rnigan, S.M. Carey, and A. Cox. 2007. Impact of a Mature Drug Court Over 10 Yeam of Operation: Recidivism and Cost. Washington, DC: U.S. Department of Justice, National
Institute of Justice. https://www.ncjrs.gov/pdffiles1/nij/grants/219225.pdf.
1
P. Allard, P.T. Lyons, and R. Elliott. 2011. Impaired Judgment: Assessing the Appropriateness of Drug Treatment Courts as a Response to Drug Use in Ganada. Toronto: Canadian HIV/AIDS
Legal Network. http://www.aidslaw.ca/site/wp-contenVuploads/2013/09/DTCs-Oct11-E.pdf; Department of Justice Canada. 2015. Drug Treatment Court Funding Program Evaluation:
Final Report. Ottawa: Author. http://www.justice.gc.ca/eng/rp-pr/cp-pm/evaVrep-rap/2015/dtcfp-ptttVdtcfp-pfttt. pdf.
I J.P. Hornick, M. Boyes, L. Tutty, and L. White. 2005. The Domestic Violence Treatment Option (OVTO), Whitehome, Yukon: Final Evaluation Report. Ottawa: National Crime Prevention
Centre. http://www.yukoncourts.ca/pdf/cwc_evaluationjune_2007_to_december_2013.pdf.
k D. Crocker, B. Crocker, and M. Dawson. 2016. Domestic Violence Court Pilot Project, Sydney, Nova Scotia. Halifax: Department of Justice, Nova Scotia.
1
C.R. Dilworth and T.G. Dilworth. 2011 . The Domestic Violence Court (OV Court) Pilot Project, Moncion, New Brunswick. Saint John, NB: New Brunswick Department of Public Safety.
https://www.gnb.ca/0012/Womens-lssues/DomesticViolenceCourt/2011-01 VictimsOffenders.pdf.
m J.P. Hornick, K. Kluz, and L.D. Bertrand. 2011 . An Evaluation of Yukon's Community Wellness Court. WMehorse: Yukon Justice. http://www.yukoncourts.ca/pdf/cwc_final_report_05-10-11.pdf
These courts operate in both rural and urban centres. Some are referred to as "Gladue
Courts," referring to an SCC decision in R. v. Gladue (discussed in Chapter 9), which
held that specific attention must be given by the criminal justice system to the unique
circumstances of Indigenous persons whenever their liberty is at stake. These courts
provide an opportunity to consider the special circumstances of Indigenous offenders
and to utilize alternative sentencing options. 23
There are a number of Indigenous courts operating across the country under the
auspices of provincial courts.
GLADUE COURTS (TORONTO)
The Gladue Courts are a component of the Ontario Court of Justice. These courts deal with
the cases of Indigenous people who have been charged in Toronto, and handle bail hearings, remands, trials, and sentencing. The judge, the Crown, and the defence lawyers, court
clerks, and court workers are all Indigenous persons. When the cases are processed, every
attempt is made to explore all possible sentencing options and alternatives to imprisonment.
TSUU T'INA NATION PEACEMAKER COURT (ALBERTA)
This provincial court, located on the Tsuu ation near Calgary, is centred on peacemaking circles. This provincial court has an Indigenous judge, Crown prosecutor, and
court clerks. Adult and youth cases (except those involving homicide and sexual assault)
can be referred to peacemaking circles by the court. To be eligible for referral, the
offender must admit responsibility for his or her actions, and the victim must agree
to participate.
Eligible cases are assigned to a peacemaker, who facilitates a circle healing process
involving Elders, the victim, the offenders, and others. In the circle, the participants
discuss what happened, the impact of the offender's actions, and what should be done.
Final agreements may require the offender to provide restitution, attend counselling,
and/or to complete a number of community service hours. A final ceremony is held
when the offender has completed the provisions in the agreement. A report is sent to
the Tsuu Tina court, where the Crown counsel reviews the case and, if satisfied, drops
the charges against the offender. If the charge is not dropped , the report from the peacemaking circle will be submitted to the judge at sentencing.
INDIGENOUS PEOPLE'S COURT IN (THUNDER BAY, ONTARIO)
This court is a collaborative initiative of the Thunder Bay Indian Fri endship Centre,
in partnership with ishnawbe-Aski Legal Services . It uses a restorative justice
approach to sentencing and draws upon Indigenous culture and traditions to h elp
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CHAPTER 7: The Structure and Operation of the Criminal Courts
175
persons who self-identify as First ation, Indigenous, Inuit, or Metis and are in
conflict with the law.
Elders play a key role in the court. To qualify to appear in the court, persons must
plead guilty and accept responsibility for their offences. The initial focus of the court
is on non-violent offences. At the opening of the court, the executive director of the
Thunder Bay Indian Friendship Centre stated, "This court will be a powerful process
to promote healing and reconciliation in our community and to use the teachings of
Indigenous people to provide a holistic approach to justice." 24
Gladue Courts continue to be established across the country, including, in 2017,
a Wellness and Gladue Court in Cape Breton, ova Scotia, based on a partnership
between the Wagmatcook and Wacobah First ations . Listen to an interview with one
of the founders of the court at http://www.cbc .ca/player/play/929008707950.
In an attempt to make the justice system more relevant to Indigenous people,
Saskatchewan has established a Cree Court in Prince Albert. This court travels to
remote communities to hear cases. Its judges and lawyers are Cree speakers, and it is
often attended by a Cree-speaking probation officer. Translators are provided when
necessary. This court makes it possible for crime victims, witnesses, and defendants to
speak in their own language.
The Cree Court and similar initiatives are designed to address the serious
issues that surround the delivery of justice services in many rural and remote
Indigenous communities.
Critics have argued that, despite the development of alternative Indigenous-centred
justice forums, there is still in Canadian criminal justice the absence of an "Aboriginal
voice" that would legitimize the court process and reduce what is referred to by one
observer as the "illegitimate colonial control over Aboriginal Canadians." 25
PROVINCIAUTERRITORIAL CIRCUIT COURTS
In many northern and remote areas, judicial services are often provided via circuit
courts. Circuit court parties, composed of a judge, a court clerk, a defence lawyer, a
Crown counsel, and perhaps a translator, travel to communities (generally by plane)
to hold court. Many communities are served every month; others are visited quarterly
or even less often if there are no cases to be heard or if the weather or mechanical
ARCTK: j
,
OCEAN·
,
,
--~-
• A circuit court party (left) arrives in the community of Qikiqtarjuaq, Nunavut (see map).
176
Part Ill: The Criminal Courts
NEL
problems with the court plane prevent a scheduled visit. The most extensive provincial/
territorial circuit court systems are in the orthwest Territories, northwestern Ontario,
northern Quebec, and unavut.
Most of the communities are too small to have courthouses, and so the court is
held in schools, community centres, or other buildings that are available. Unlike
in more urban areas, the circuit court hearings are often a community event,
and there are often many persons from the community, of all ages, observing
the proceedings.
Concerns about the circuit court system include the lengthy court dockets
resulting from the backlog of cases; time constraints on the court party, which
often preclude effective Crown and defence preparation and result in marathon
court sessions, frequently lasting up to 12 hours; the shortage of interpreters as the
Indigenous person accused may understand little English or French and even less
of the legal terminology spoken in court; and the general difficulties arising from
the cultural differences between Canadian law and its practitioners and Indigenous
offenders, victims, and communities. 26 The issue of case delay in these types of
cases may become even more of an issue with the ruling of the SCC in the case
of R. v. Jordan that set timelines for cases to be resolved in the criminal courts
(see below).
Circuit court judges often face a difficult decision: Should they remove the convicted person from the community and place him or her in confinement hundreds or even thousands of kilometres away? To address this concern, the circuit
courts are encouraging community Elders to participate in the court process and
are supporting the development of community forums for dispute resolution and
for alternatives to incarceration. Restorative justice strategies are often applied
in this environment. However, circuit court judges must balance the need to
develop culturally and community-relevant approaches to conflict resolution
and case processing with the need to ensure that the rights and safety of crime
victims are protected. This balance is especially important in cases involving women and
young girls who have been the victims of spousal or sexual assault. For a description of a
typical circuit court hearing day, see Court File 7.1.
THE PROVINCIALJTERRITORIAL SUPERIOR COURTS
The superior courts are the highest level of courts in a province/territory and are administered by provincial and territorial governments; however, superior court judges are
appointed and paid by the federal government. The name of the superior court generally identifies its location (for example, the Court of Queen's Bench of Manitoba).
About 10 percent of criminal cases are heard in the superior courts.
Superior courts generally have two levels: trial and appeal. These two levels may be
included in the same court, with two divisions (trial and appeal ), or they may involve
two separate courts. In Ontario, however, the Court of Appeal is independent and separate from the Superior Court of Justice and the Ontario Court of Justice, which are the
main two trial courts in the province.
The trial-level superior court hears cases involving serious criminal offences; the
appeal-level superior court hears criminal appeals (and civil appeals as well ) from the
superior trial court. The trial court may be known as the Supreme Court or the Court
of Queen's Bench; the appeal court is usually called the Court of Appeal. These courts
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CHAPTER 7: The Structure and Operation of the Criminal Courts
177
COURT FILE 7.1
CIRCUIT COURT DAY, NORTHERN SASKATCHEWAN
August 15, 2002: It's a nice day, so people amble about
outside, waiting for the judge to arrive. A big fellow wears
a black shirt which taunts: "I DID NOT ESCAPE. THEY GAVE
ME A DAY PASS." On one side of the building is located the
community hall, which serves as both bingo parlour and
courtroom-when a trial runs too long, the bingo players
bang on the door to be let in-and on the other side is the
village office. All the windows have bars or are covered with
wire mesh, which is why it seems such a dismal place. The
railing on the stairs has mostly fallen away, and the floor of
the entryway has a gaping hole in it. How someone hasn't
broken their leg is a wonder. On the outside wall of the
village office, in bright blue paint, is scribbled "F***" in huge
letters; on the community-hall side, there's a smaller "F***"
painted in the same painful blue. Piles of garbage and
rubble are scattered around.
The interior is not much better. The walls are streaked and
need a paint job, the grey-white floor has tiles missing. An
old, faded red Christmas decoration hangs from the Exit sign,
which has not lit up in years. The smell of cigarettes, smoked
during frantic rounds of bingo, hangs in the air. A steel door
right near the judge's chair opens onto the "executive washroom," a small space with toilet, sink, and one chair. This is
the defence lawyer's consultation room, where he or she discusses a client's case-often for the first time. The lawyer sits
on the toilet, the client on the chair, or the other way around.
The first group of accused file in. Since they are being
held in custody, all are handcuffed and shackled, looking
haggard from lack of sleep ... The captives sit in chairs
directly behind the prosecutor, which, he admits, makes
him very nervous. Quietly, a toddler escapes from his
stroller and runs toward his father. Despite his fetters,
he lifts the child to his knee and kisses him. Another
young prisoner, wearing a red Indian Posse bandana, sits
and smooches with his girl, who is about seven months
pregnant. She is oblivious to his chains. Another shackled
captive explains that he is trying to get back into school:
the judge listens as he munches on an apple. An attractive
young woman is called to the witness stand, which consists
of a rickety chair. She wobbles, obviously inexperienced at
walking with her legs chained. The court is told that, under
the influence of alcohol, she stabbed her husband twice.
The wounds were not life-threatening. She has a history
of depression-twice she has tried seriously to commit
suicide-and no previous record. She is given a suspended
sentence, and ordered to attend an alcohol treatment
centre. The RCMP officer undoes her handcuffs and
shackles and she joins the crowd in the back of the room.
Source: M. Siggins. 2005. Bitter Embrace: White Society's Assault on the Woodland
Cree. Toronto: McClelland & Stewart, pp. 291-292. Copyright© 2005 by Maggie
Siggins. Reprinted by permission of McClelland & Stewart, a division of Penguin
Random House canada Limited and by permission of the author.
hear cases involving the most serious offences, such as murder. Trials at this level may
involve juries.
After a case has been decided at the trial level, the accused has the right to appeal
the verdict or the sentence, or both, to a higher court. Appeals of provincial court decisions may have to be heard first in a superior court. Appeals from the trial divisions of
the superior courts go directl y to the provincial or territorial court of appeal. There
is one court of appeal in each province and territory, except in Quebec and Alberta,
where there are two. In all provinces, these courts are called the Court of Appeal (for
example, the British Columbia Court of Appeal or the Quebec Court of Appeal).
The primary activities of appeal courts centre on reviewing decisions of the lower
courts. The focus is on how the law was applied to the facts in the case. 27 While many
preliminary matters are dealt with by a single judge, certain final hearings require at
least three judges to hear the appeal, and the final decisions rests with the majority.
Oral arguments are made to a three-judge panel by lawyers for both parties. However, it
has been pointed out that appeal court judges are much more isolated than trial court
judges, spending most of their time "researching and writing their opinions in their own
chambers, enjoying only limited contact witl1 others (primarily their own law clerks)."ZS
There are instances in which appeal courts have chastised lower court judges. In one case,
a judge of the Ontario Court of Justice was rebuked by an Ontario Superior Court judge for
contributing to the "culture of complacency" that afflicts the criminal justice system. 'n1e
Superior Court judge cited noted that the lower-court judge ended court sessions when
there were still witnesses waiting to testify, resulting in lengthy delays in the case. 29
178
Part Ill: The Criminal Courts
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THE SUPREME COURT OF CANADA
If at least one appellate judge dissents (that is, does not agree with the majority), the
unsuccessful party may pursue another appeal at the federal level. The "court of last
resort" -the Supreme Court of Canada-is located in Ottawa but hears cases from all
provinces and territories. The Supreme Court was established under the Constitution
Act (1867), which authorized Parliament to establish a general court of appeal for
Canada, although the bill creating the court was not passed until 1875.
The governor in council appoints the nine judges of the Supreme Court; those
chosen must be superior court judges or lawyers with at least 10 years' standing at the
bar in a province or territory. The appointees are selected from the major regions of the
country; however, three of the judges on the court must be from Quebec (http://www
.scc-csc.gc.ca). The decisions of the Supreme Court are final and cannot be appealed.
However, in some instances Parliament has passed legislation in response to a decision of the Supreme Court that has effectively changed the result of the decision. This
occurred in the case of R. v. Feeney ([ 1997] 3 SCR 1008).
Two other federal courts are the Federal Court and the Tax Court. The Federal Court
has a Trial Court and a Court of Appeal, and hears all cases that concern matters of
federal law, including copyright law, maritime law, the Canadian Human Rights Act
(R.S.C. 1985, c. H-6), the Immigration and Refugee Protection Act (S.C . 2001, c. 27),
and appeals from the Parole Board of Canada.
While the Supreme Court receives hundreds of applications for cases to be considered, it generally grants only about 10 percent of requests. Cases are heard by an odd
number of judges-five, seven , or nine-to avoid ties. The cases that are decided by the
Supreme Court of Canada often involve interpretations of the Charter of Rights and
Freedoms or complicated issues in private and public law.
In many cases that come before the Supreme Court, either the defendant or the Crown
asks for permission, or leave, to appeal the decision of a lower court. In some instances,
the federal government asks the Supreme Court for a legal opinion on an important legal
question, a process that is referred to as a reference. In 1998, the federal government asked
• The Supreme Court of Canada sitting
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CHAPTER 7: The Structure and Operation of the Criminal Courts
179
the Court to decide whether Quebec could secede unilaterally from Canada under the
Constih1tion and whether international law gives the province of Quebec the right to
secede unilaterally from Canada (Reference re Secession of Quebec, [1998] 2 SCR 217). In
another case, the federal government asked the Supreme Court for a non-binding opinion
as to whether the government could redefine marriage to allow for same-sex marriages.
The court ruled (Reference re Same-Sex Marriage, 2004 SCC 79) that the federal government could do so; this resulted in legislation giving gays and lesbians the right to marry.
In many of the cases heard by the SCC, there is a tension between individual rights as
set out in the Charter of Rights and Freedoms and the need to protect the general public.
This tension is illustrated in R. V. Sharpe (2001
2). In Sharpe, the Supreme Court
upheld the law relating to the possession of child pornography (with certain exceptions;
see Court File 7.2). In other cases, laws have been struck down. In R. v. Morgentaler
([1988] 1 SCR 30), for example, the SCC held that the procedures for obtaining a
therapeutic abortion as defined in section 287 of the Criminal Code infringed on the
right to security of the person because of the uneven availability of services across the
country. And, in R. v. Zundel ([ 1992] 2 SCR 731 ), the court held that the offence of
spreading false news (s. 181 ) and even hate literature is constitutionally invalid because
it infringes the fundamental freedoms of thought, belief, opinion, and expression and
is not a reasonable limit in a democratic society. Although the laws referred to in these
cases are still part of the Criminal Code, they cannot be used to prosecute anyone.
The decisions of the Supreme Court in Charter-related cases can also affect legal
procedures. In R. v. Stinchcombe ([1991] 3 SCR 326), for example, the SCC held that
the prosecution must give all relevant evidence gathered by the police to the defence to
permit a defendant to make a full answer and defence to the charges.
sec
COURT FILE 7.2
R. V. SHARPE: A CASE OF COMPETING RIGHTS
In R. v. Sharpe (2001 sec 2), the accused was charged with two
counts of possession of child pornography under section 163.1 (4)
of the Criminal Code and two counts of possession of child
pornography for the purposes of distribution or sale under section
163.1 (3). Among other materials, Sharpe had in his possession
pictures of young boys engaged in sexual activities and a collection
of child pornography stories (titled "Kiddie Kink Classics") that he
had written.
At trial, the B.C. Supreme Court acquitted Sharpe of the charge
of possession of child pornography. The acquittal was later upheld by
the B.C. Court of Appeal, which stated that the Criminal Code section
on possession of child pornography was "one step removed from
criminalizing simply having objectionable thoughts."
The case was appealed to the Supreme Court of Canada by the
province of British Columbia. The federal government, most provincial
governments and police associations, and a variety of child advocate
and child protection organizations argued that the need to protect
children from sexual exploitation outweighed any protections that
might be offered to Sharpe under the Canadian Charter of Rights
and Freedoms. In a unanimous ruling, the Supreme Court upheld the
law that makes it a crime to possess child pornography. Sharpe was
180
Part Ill: The Criminal Courts
convicted of possessing more than 400 photographs that met the
legal definition of child pornography. "Freedom of expression," the
chief justice stated, "is not absolute," given the constitutional limitations provided under section 1 of the Charter, which expressly permit
the court to consider "reasonable limits in a free and democratic
society."
The controversial part of the Supreme Court's decision was its creation of two exceptions. The first of these asserted the right to protect
private works of the imagination or photographic depictions of one's
own body; the second permitted the possession of child pornography
by those who create sexually explicit depictions of children for their
own personal pleasure. The Supreme Court of Canada directed that
Sharpe be retried on the charge of possessing child pornography and
be required to prove that his case met the requirements of one of the
two exceptions. Some critics asserted that the court's decision was
tantamount to a legalization of child pornography. In March 2002, a
B.C. Supreme Court justice ruled that Sharpe's written work, which
contained descriptions of child sex and violence, had "artistic value,"
and Sharpe was acquitted.
Source: R. v. Sharpe, 2002 BCSC 423.
NEL
sec
The
also hears cases that are surrounded by controversy. In L'.Ul l, Utt u ~ - in favour of PHS Community Services Society, a non-profit organization that operates
Insite, the supervised injection site for drug users in Vancouver. In the case of Canada
(Attorney General) v. PHS Community Services Society (2011 SCC 44), the court held
that efforts of the federal government to close the facility violated the rights of life and
security of the person under section 7 of the Charter of Rights and Freedoms. 30
Recall from Chapter 2 that interest groups often play a role in the formulation and
application of the criminal law. The Supreme Court frequently permits intervenors
(persons or parties not directly involved in the case) to file written materials and, in
some instances, to make oral arguments in support of their position. The extent to
which these intervenors affect tl1e final outcome of a case is uncertain.
THE COURTROOM WORKGROUP
Courtroom workgroup
The criminal justice professionals,
including the judge, Crown counsel, and
defence lawyer, who are present in the
criminal court courtroom.
The professionals who populate the criminal court courtroom can be described as tl1e
courtroom workgroup. 31 Its permanent members have traditionally been tl1e presiding
judge, Crown counsel, and defence lawyer. Otl1er professionals may appear on occasion (e.g., expert witnesses). The advent of problem-solving courts (discussed earlier
in tl1e chapter) has resulted in an expansion of the courtroom workgroup to include
representatives from agencies and community organizations; various restorative justice
approaches include members of the community as well.
THEJUDGE
'f' The Honourable Steve A. Coroza, the first
Filipino-Canadian appointed to the Ontario
Superior Court of Justice
The presiding judge in a criminal case is a "trier of fact" and plays a variety of roles. These
include interpreting the law, assessing whether evidence can be admitted, ruling on
motions made by the Crown counsel and defence lawyer, and determining the truthfulness of evidence. In most cases, it also includes making a decision on theguiltorinnocence
of the accused and passing sentence. A key role of the judge is serving as a "gatekeeper" of
evidence presented during the trial, including expert testimony, one legal scholar noting,
"As gate-keepers, judges serve to balance the utility of[ expert testimony] against its
possible prejudicial effects." 32
In cases involving a jury, it is the jury that is the trier of fact, and tl1e judge
assumes the role of explaining legal procedures and specifics about the law, as
well as giving tl1e jury instructions on how the law is to be applied in reaching its
decision on the guilt or innocence of the accused. 33 In all cases, it is the judge
who determines the sentence. For each sentence, judges are expected to provide
oral and written reasons for their decision .
JUSTICES OF THE PEACE
Justices of the peace (JPs) play a significant, but often overlooked, role in the
criminal justice system. The legal authority of JPs is set out in federal and provincial/territorial statutes and regulations, including provincial/territorial justice
of tl1e peace acts and the Criminal Code. There are notable differences between
judges and justices of the peace. Although both are appointed by their respective
provincial/territorial government, judges are required to be experienced lawye rs,
while JPs are not lawyers. Other qualifications for JPs are set out in provincial/
territorial legislation.
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CHAPTER 7: The Structure and Operation of the Criminal Courts
181
p1ay a variety of roles depending upon the jurisdiction. In Ontario, JPs and
provincial court judges compose the Ontario Court of Justice, one of Ontario's two
trial courts have primary responsibility for issuing search warrants and conducting
bail hearings. In addition, JPs preside over hearings involving provincial/territory regulatory offences, including those that are liquor and traffic-related. JPs may also preside in small claims courts, work in court registries, and handle court scheduling. JPs
are also involved in hearing applications for, and granting or denying applications by
the police for, search warrants. One JP in Ontario referred to their role with respect
to search warrants as that of a middleman "between an overactive policeman, and a
member of the public." 34
Given their role, there has in recent years been an increased focus on the qualifications and training of JPs. Critics contend that some JPs are appointed based on political
patronage rather than qualifications and also that legal errors made by JPs result in
accused persons being improperly detained at their bail hearing. 35
P,
DEFENCE LAWYERS
Defence lawyers represent persons who are charged with a criminal offence(s). The
primary responsibility of the defence lawye r is to ensure that the rights of the accused
person are protected throughout the criminal justice process. Defence lawyers are
often actively involved in attempting to negotiate a plea for their client outside of
the formal court process (see Chapter 8). At trial, the defence lawye r presents evidence and questions witnesses, experts, and others (and less often, the accused) to
build a case as to the innocence of the accused. The defence lawyer is also involved
in cross-examining witnesses for the prosecution and challenging the evidence that is
presented by the Crown. Some accused persons are represented by legal aid lawyers
(see Chapter 8).
There are concerns with the lack of diversity among defence lawye rs and with the
challenges faced by women lawyers in pursing the profession . A report by the Criminal
Lawyers Association of Ontario 36 focusing on the retention of women in criminal law
found that women lawyers who participated in focus group discussions identified a
number of challenges, including the unpredictability of work hours, the unpredictability of income, and the difficulties of having and raising children while working in
criminal law, as probable reasons why women may choose to leave the private practice
of criminal law.
The results of a survey ( = 224) conducted as part of the study found that women
were treated differently from men in the courtroom by judges, Crown counsel, and
other court staff, with only 22 percent of respondents viewing women and men as
treated the same. Sixty-one percent of women reported that they had considered leaving
the practice of criminal law, citing low pay, long hours, and the challenges of dealing
with Legal Aid as reasons that had fuelled that consideration. 37 The study also found
that women were leaving the practice of criminal law at a much higher rate than their
male colleagues. 38
Listen to a panel discussion of the issue at http://www.cbc.ca/radio/thecurrent/the
-current-for-march-7-2016-1. 34 788 12/women-leavi ng-crimi nal-defence-law-due-to
-discrimination-new-report-says-1. 34 78945.
DUTY COUNSEL
The duty counsel lawye r is first point of contact for a person who has been detained or
arrested . The duty counsel's advice can be provided via telephone or in person. Duty
182
Part Ill: The Criminal Courts
NEL
counsel may also represent an accused in court. These services are often provided as
part of a provincial or territorial legal aid plan to ensure that persons who cannot afford
to hire a private lawyer have representation .
CROWN COUNSEL
Crown attorneys are lawyers who represent the Crown (or government) in court and
who are responsible for prosecuting criminal cases. The responsibility for prosecuting
cases is shared between the provinces and the federal government, with provincially
appointed Crown attorneys prosecuting Criminal Code offences and federally appointed
Crown attorneys prosecuting persons charged with violating other federal statutes, such
as the Controlled Drugs and Substances Act (S.C. 1996, c. 19). In Yukon, the orthwest
Territories, and unavut, federally appointed Crown attorneys are responsible for prosecuting all cases.
Crown counsel have been described as being a "cornerstone of the criminal justice system." 39 Crown counsel carry out their tasks on behalf of the community,
rather than the victims of crime. These lawye rs are responsible for laying charges
against the accused in some provinces and are also involved in the prosecution of
accused persons.
The role, duties, and responsibilities of provincial Crown counsel are set out in
legislation. Federal prosecutors are employed by the Public Prosecutor Service of
Canada and operate within the framework of the Director of Public Prosecutions Act
(S.C. 2006, c. 9, s. 121 ). These Crown attorneys prosecute cases under federal statutes,
including drugs, organized crime, and terrorism. 40
Crown attorneys are involved in a range of activities. They provide advice to police
officers at the pre-charge stage; they prepare for trial (for example, they collect evidence
from the police and other sources, research case precedents, and interview victims,
witnesses, and experts who may be called to testify); and they prepare for post-trial
appeals. Crown counsel are also involved in plea bargaining (see below), developing trial strategies, managing witnesses, arguing conditions of bail , recommending
sentences to the court, and appealing sentences deemed too lenient. Crown attorneys
must also remain up-to-date on changes in the law and in judicial precedent, including
decisions in Charter cases.
Crown prosecutors exercise a considerable amount of discretion in case processing,
and this power has been reaffirmed by the Supreme Court of Canada (R. v. Jolivet, 2000
29).
At trial, the Crown presents the state's case in an attempt to prove beyond a reasonable
doubt that the accused is guilty of the offence with which he or she has been charged.
Historically, the role of Crown counsel was viewed as one of being a "representative of
justice" rather than that of "partisan advocate": "Their role is not to win convictions
at any cost but to put before the court all available, relevant, and admissible evidence
necessary to enable the court to determine the guilt or innocence of the accused." 41
This principle was established nearl y 60 yea rs ago by the SCC in Boucher v. The
Queen ([ 195 5] SCR 16): "It cannot be overemphasized that the purpose of a criminal
prosecution is not to obtain a conviction .... The role of prosecutor excludes any
notion of winning or losing; his function is a matter of public duty." 42 How this view
of the Crown's role is reconciled with the demands of an adversarial system remains
to be explored.
The challenge of increasing workloads in the criminal justice system is reflected
in the work of Crown counsel, many of whom process up to 50 cases a day and work
sec
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CHAPTER 7: The Structure and Operation of the Criminal Courts
183
90 hours a week . In the words of one Crown counsel, "You know I've winged many
cases. I've seen me do trials when the first time I ever read the file was when I was
calling my first witness 'cause I never had time. Just didn't have time to prepare for
it. I'll call my witness, and while he's walking up to the stand I'll read his statement,
and then I'll find out what he's got to say and then I'll question him. I did that many
times."43
Increasingly, prosecutors must deal with sensitive cases involving sexual offences,
family violence, and the victimization of children. ew technologies, such as DNA
evidence, require prosecutors to have specialized knowledge (or access to it). When
prosecutors travel with circuit courts or to satellite court locations, they often have little
time for case preparation. Other chall enges are the cultural and language barriers that
are encountered in northern and remote Indigenous communities as well as in some
urban centres.
In recent years, Crown counsel have experienced increasing workloads due to the
complexity of criminal cases, budget reductions, and legislation enacted by the federal
government, including mandatory minimum sentences that may encourage accused
persons to take their case to trial. 44 The role of Crown counsel in prosecuting cases
is discussed in further detail in Chapter 8. ate that the PPSC is not an investigative
agency and does not conduct investigations. 45
OTHER COURTROOM PERSONNEL
Besides lawyers and judges, other court personnel play important roles in the processing and disposition of cases. Court administrators-also known as court registrars or
court clerks-perform a variety of administrative tasks. For example, they appoint staff,
manage court finances, sign orders and judgments, receive and record documents filed
in the court, and certify copies of court proceedings. On request, the court reporter can
make a verbatim (word for word) transcript of everyth ing that is said during the trial.
This is possible because the proceedings are tape recorded.
Sheriffs support the court by assisting in jury management, escorting accused and
convicted persons, and providing security in the courtroom. In some provinces, they
serve legal documents, seize goods, and collect fines.
FEATURES OF THE COURTROOM WORKGROUP
The members of the courtroom workgroup-the judge, Crown counsel, and defence
lawyer-are permanent fixtures in the court, have professional and often personal
relationships, and, it is argued, share a common commitment to the adversarial system
of criminal justice. 46 The diversity of Canadian society is generally not reflected in the
courtroom workgroup.
Significantly, and in contrast to restorative justice approaches, most accused persons
play little or no role in the court process, are merely visitors (albeit for some accused,
frequent visitors) to the court, and have no relationships with the others. Too often,
offenders are also peripheral to the courtroom workgroup and are merely passive
bystanders. As one offender with a lengthy criminal record commented, "When I go to
court, my lawyer tells me to 'shut up' and not say a word. He gets me the best possible
deal " (personal communication with C.T Griffiths).
This results in a situation where offenders may have numerous convictions on their
record , and periods of incarceration, yet have never spoken in court or engaged in a
discussion abo ut their behaviour and what they understand about why they commit
crim es and the impact of their criminal ity on them, their fami lies, victims, and the
184
Part Ill: The Criminal Courts
NEL
community. This lessens the likelihood that significant changes will be made in th eir
a tti tu des and behaviour.
The power differential between the decision makers and the persons who become
involved in the criminal justice system has been extensively documented and is often
cited as a reason for the failures of the criminal justice system. early two-thirds of
defendants plead guilty, and many of these pleas are a result of plea negotiations (see
Chapter 8). Accused who appear in criminal courts are disproportionately Indigenous,
Black, and disenfranchised persons from lower socio-economic levels of the community. Many are mentally ill. Two key issues for many accused persons defendants are the
access to legal representation and access to legal aid (discussed in Chapter 8).
Concerns with the vulnerabilities of accused persons and the inability of the criminal
courts to address the needs of persons with special challenges have been a major catalyst
for the development of several types of specialized courts, discussed above. As well, it is
argued that restorative justice approaches hold considerably more promise to address the
needs of the community, the victim, and the offender. A key feature of restorative justice is
the involvement of the community and a reduced role for criminal justice professionals.
WHEREDOJUDGESCOMEFROM?
Judges at the provincial court level are appointed by provincial governments, while
judges of the superior courts are appointed by the federal government. Appointments
are for life so that once on the bench, judges need not consider the career implications when making controversial decisions. The appointment of judges is the historical
legacy from England, "The courts were the King's courts and the judges were the King's
judges." 47 A current issue is the delay associated with appointing new judges, which
would assist in ensuring that cases are heard in a timel y manner.
Each province/territory has in place a Judicial Advisory Committee composed of
lawyers and laypersons generally appointed by the attorney general. These screening
committees forward nominations to the justice minister, who makes the final appointments. At the federal level, regional committees are composed largely of members of
the legal profession and community members appointed by Ottawa, who create lists of
candidates who are forwarded to the Department of Justice and debated in cabinet. It is
argued that this process mitigates diversity in the judiciary.
Under the Canadian Constitution, SCC judges are to be appointed by the governor
general of Canada. In practice, however, it is the prime minister and cabinet who make
the selections, and approval by the governor general is a formality. The prime minister
is not required to seek approval of the selection via a vote in Parliament nor is required
to consult with provincial or territorial leaders as to whom should be recommended
for appointment. The Supreme Court Act (R.S.C. 1985, c. S-26) does require that the
potential appointee be a judge in a provincial superior court or have at least 10 yea rs'
experience as a lawyer. As noted earlier, the Act also stipulates that at least three of the
judges on the nine-judge court must be from Quebec.
Concerns about the lack of consultation led in 2004 to the creation of an ad hoc
Parliamentary committee that reviews a list of seven candidates, and shortlists three
from which the prime minister will select one. However, the final decision rests with
the prime minister in the executive branch of government. The prime minister's
selection cannot be blocked by either the committee or Parliament. Th is process
is in contrast to the procedure in the U.S., where presidential appointments to the
U.S. Supreme Court must be confirmed by the U.S. Senate, which is a part of the
legislative branch. 48
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CHAPTER 7: The Structure and Operation of the Criminal Courts
185
Observers have noted that judicial appointments to the SCC and to the provincial
courts may be inAuenced by the politics of the government of the day. 49 Concerns have
also been raised about the absence of transparency in who applies to become a judge,
their qualifications, and the deliberations of the judicial advisory committees who make
recommendations for appointments. 50, 51
DIVERSITY (OR THE LACK THEREOF) IN THE JUDICIARY
An ongoing issue is the absence of diversity in the judiciary where older, white males are
most prominent. Several observers have referred to a "j udiciary of whiteness," reAecting
the underrepresentation of women, visible minorities, and Indigenous persons in
the judiciary (lack of racial diversity among judges). 52 This underrepresentation is
highlighted in the two graphs in Figure 7.5 .
This underrepresentation is evident in the very small number of visible minority
judges in the provinces: only three of more than 500 judges in Quebec, 24 of 334
judges in Ontario, and four visible minority judges out of 99 in ova Scotia, including
two Blacks (in a province where Blacks are overrepresented in the justice system). 53
Provincial Court Diversity-Federally Appointed
40% -
38.1%
0.6%
0%
Prov Supreme Courts
Prov Courts of Appeal
0.1%
Superior Courts/Queen's Bench
• Women • Visible minority • Indigenous
Provincial Court Diversity-Provincially Appointed
50% -
38% -
• FIGURE 7.5
25% -
The Lack of Diversity in the
Canadian Judiciary
13% -
NB
NS
• Women • Visible minority • Indigenous
186
Part Ill: The Criminal Courts
PEI
NL
North
Source: A. Griffith. 2016, May 4. "Diversity among
Federal and Provincial Judges,· Policy Options.
httpJ/policyoptions.irpp.org/2016/05/04/
diversity-among-federal-provincial-judges.
Reprinted by permission of the Institute
for Research on Public Policy.
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Concerns with the selection process and the lack of diversity on the benc 11 c1,"
reflected in the comments of an Indigenous lawye r in Halifax: "While the law is objective, a person's assessment of the facts, including another's behaviour, motives and justifications, is inevitably coloured by who we are and where we come from."54 This is
of particular concern given the overrepresentation of Indigenous persons and Blacks in
the criminal justice system_55
A milestone for the judiciary and the criminal justice system was the appointment of
the first transgender person as a judge of the Manitoba court in 2015_ 56
JUDICIAL ETHICS AND ACCOUNTABILITY
Key themes in this text are ethics and accountability in the criminal justice system.
These are often-contentious issues with respect to the legal profession generally and,
more specifically, the judiciary.
Provincial, territorial, and federal court judges are guided by ethical principles that
are set out in various provincial and territorial documents and, for federally appointed
Judicial independence
The notion that judges are not subject
to pressure and influence and are free
to make impartial decisions based solely
on fact and law.
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judges, by the Canadian Judicial Council. The standards centre on integrity in personal
and professional conduct and highlight impartiality and objectivity, a duty to follow the
law, and the importance of appropriate personal conduct.
Historically, the focus in Canada has been on judicial independence rather than on
judicial accountabili ty although the focus on accountability has increased in recent
years. Provincial and territorial court judges are held accountable to various bodies. In
Ontario, for example, the Ontario Judicial Council (OJC) operates under the Courts
of fustice Act (R.S.O. 1990, c. C.43) and investigates complaints made by the general
public about provincial courts judges (http://www.ontariocourts.ca/oc j/ojc). See the
annual report of the OJC for case summaries of complaints (http://www.ontariocourts.
ca/ocj/fi les/annualreport/ojc/2014-2015-E .pelf).
The primary structure of accountability for federally appointed judges is the
Canadian Judicial Council (CJC) (http://www.cjc-ccm.gc.ca), created under the
fudges Act (R.S.C. 1985, c. J-1 ), which is chaired by the chief justice of Canada and is
composed of judges.
Complaints about judges arise from intemperate remarks and/or inappropriate
conduct either on or off the bench. Displays of gender bias, racial bias, religious bias,
conflict of interest, and cultural insensitivity are grounds for complaint, as is undue
delay in rendering a decision (which should usually take no more than six months).
Cases investigated by the CJC have involved alleged drug use by judges, as well as
other l)pes of misconduct or illegal behaviour. In one case, a judge in Ontario faced a
disciplinary hearing after wearing a Donald Trump campaign hat with the words "Make
America Great Again" into the courtroom .57
In another case, the Quebec Court of Appeal ordered a new trial due to the sexist
comments made by a male Quebec Superior Court judge toward a woman Crown
counsel. In one exchange during discussions with the jury absent, the judge said to
the Crown, "It would perhaps be a good thing if Ms. Pinsonnault listened to us." She
replied, 'Tm sorry, your honour ... I can do two things at the same time." To which
the judge responded, "That's what women are doing all the time. It does not mean
that it is always done well." 58
Sanctions range from removal from the bench (an extremely rare occurrence) to a
leave of absence with pay or a letter of reprimand . Alternatives to these include counselling, educational workshops, or the requirement that the judge apologize to the
complainant. In more serious cases, judges often choose to resign before the council
CHAPTER 7: The Structure and Operation of the Criminal Courts
187
completes its inquiry. In reality, there are only a very few instances in which judges have
been removed from the bench for misconduct.
In one case, a complaint was filed against a provincial court judge who allegedly
sped up a sexual assault trial at an out-of-town courthouse, saying that he would like
to sleep that night in his own bed. 59
These and other cases highlight the increasing scrutiny of judicial behavio ur, particularly in cases involving sexual assa ult. The discussion in Chapter 6 revealed a similar
focus on the police handling of sexual assault cases. It also suggests that members of the
judiciary should be carefully vetted to ensure their personal attitudes and beliefs do not
compromise their role as an impartial arbiter in criminal trials.
PUBLIC COMPLAINTS ABOUT JUDGES
Recall from Chapter 5 the discussion of public complaints against the police and the
initiatives that have been taken in recent yea rs to make the complaint process more
transparent and to include civilian oversight of the handling of complaints. These
developments stand in contrast to the complaint process for judges.
Judges who have been sanctioned by the Canadian Judicial Council can appeal to
the Supreme Court of Canada. Some observers have questioned the adequacy and
impartiality of the structures for judicial accountability, especially in view of the fact
that judges are generally appointed for life. See At Issue 7 .1 .
Critics have argued that the disciplinary process for judges should be more transparent. Generally, only case summaries, without the names of the judge involved in
AT ISSUE 7.1
SHOULD THERE BE INDEPENDENT OVERSIGHT OF THE JUDICIARY?
Earlier in this book, it has been noted that the police are the
only criminal justice agency that is subjected to outside civilian
oversight. The legal profession, including the judiciary, is selfregulated ; that is, the only structures of accountability exist within
the legal profession. Concerns have been raised about the ability
of provincial and territorial law societies to both represent and
regulate the profession and the effectiveness of the Canadian
Judicial Council as oversight bodies.a As well , it is noted that most
complaints that are made to the Canadian Judicial Council are not
made public but rather are kept private between the complainant,
the CJC, and the judge.
A key argument that is made against outside oversight of judges is
that of Judicial independence, which means that "judges are not subject to pressure and influence, and are free to make impartial decisions based solely on fact and law.''b Judicial independence has been
cited as a primary reason why most Canadian judges do not allow
cameras in their courtrooms. This issue is discussed in Chapter 8.
One question is whether the notion of judicial independence
should extend to independence from oversight. Arguments in
support of ensuring judicial independence distinguish between
judges and the police and prosecutors, noting that the latter "are
in the employ and within the authority of the executive branch of
government and ... are agents of the Crown," whereas judges "are
188
Part Ill: The Criminal Courts
not subject to the direction or control of the executive branch of
government. "c
A review of the record indicates that few complaints ultimately
result in the removal of a judge from the bench. As well, since the
disciplinary procedure was established in 1971, there have been
very few public inquiries by the council into the behaviour of a federal
judge. Most complaints (which average less than 200 per year) are
handled by the chairperson of the council and are not publicized but
kept between the complainant, the judge, and the CJC. It might be
argued that this practice limits the transparency of the council 's work.
QUESTIONS
1. In your view, should judges be subject to independent oversight,
similar to the police?
2. What arguments could be made in support of, and in opposition to,
establishing independent oversight of the police?
• R.F. Devlin and P. Herreman. 2008. "The End(s) of Self-Regulation?" Alberta Law
Review, 4~5) , 169--213.
b Chief Justices of British Columbia Courts. 2012, March 15. "Judicial Independence
(And What Everyone Should Know About It)," p. 1. http://www.courts.gov.bc.ca/about_
the_courts/Judicial%20lndependence%20Final%20Release.pdf.
c Ibid., p. 4.
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COURT FILE 7.3
THE CASE OF JUSTICE ROBIN CAMP
In 2014, Alexander Wagar, a homeless youth, was on trial for sexually
assaulting a 19-year-old woman. During the proceedings, Justice
Robin Camp questioned the victim about the incident, on one occasion
stating, "Why couldn't you just keep your knees together?" These and
other comments by the judge, including several instances in which the
victim was referred to as the "accused," raised concerns among legal
observers and victims groups. Wagar was found not guilty by Justice
Camp, who ruled that his testimony was more credible than that of the
victim. The Crown appealed the case, and the Alberta Court of Appeal
overturned the acquittal and ordered that Wagar be retried. At retrial,
he was found not guilty.a
Justice Camp was subsequently appointed to the federal court.
The Canadian Judicial Council launched an investigation and hearing
into his alleged misconduct. In reviewing the transcripts from the
trial, the committee found that the comments and questions asked
by Justice Camp showed "antipathy toward laws designed to protect
vulnerable witnesses, promote equality, and bring integrity to sexual
assault trials. "b The committee also found that in his reasons for
judgment in the case, Justice Camp "relied on discredited myths and
stereotypes about women and victim-blaming during the trial and in
his reasons for judgment. •c
In his defence, Justice Camp apologized to the complainant for
this conduct and indicated that, having been educated in South Africa,
he had very little knowledge of the law relating to sexual assault in
Canada.
Justice Camp's questions to the alleged victim were found by
the panel to be "condescending, humiliating and disrespectful. "d
The committee concluded that Justice Camp's behaviour had
seriously compromised the judicial principles of impartiality, integrity,
and independence. The committee's recommendation was that
Justice Camp should be removed from the bench. Justice Camp
subsequently resigned his position in March 2017, making his
one of three cases in which judges have been removed from their
position by the CJC since 1971 .e An interview with the victim, whose
identity is protected, can be viewed at https://www.youtube.com/
watch?v=VPrM0xn-1 EQ.
QUESTIONS
1. In your view, did the committee make the right decision in the
case of Justice Robin Camp?
2. In November 2017, Camp applied to the Alberta Law Society for
reinstatement as a lawyer, which would allow him to practise law.
If you were on the law society's panel, would you vote to reinstate
him? Camp indicated that he had grown from the experience and
had been helped by counselling and, further, that he had wanted
to deliver a personal apology to the woman, but had been advised
not to.
• B. Graveland. 2017, January 31. ' Alexander Wagar Not Guilty in Alberta 'Knees Together'
Retrial ," Global News. http://globalnews.ca/news/3216107/alberta-judge-to-give-verdictin-alexander-wagar-knees-together-retrial.
b Ganadian Judicial Council. 2016. Report to the Canadian Judicial Council of the Inquiry
C',ommittee Appointed Under Subsection 63 (3) of the Judges Act to Conduct an Investigation
into the Conduct of the Honourable Robin Gamp, A Justice of the Federal Court. Ove!View.
Ottawa: Author, p. 3. https://www.cjc-ccm.gc.ca/cmslib/generaVGamp_Docs/2017-03-08%20
Report%20to%20Minister.pdf.
C
Ibid.
d Ganadian Judicial Council. 2017. In the Matterof S. 63 of the Judges Act, R.S., c. J- 1
Ganadian Judicial Inquiry into the Conduct of the Honourable Robin Gamp. Report to the
Minister of Justice, p. 7. https://www.cjc-ccm.gc.ca/cmslib/generaVGamp_Docs/2016-11
-29%20Camp%20lnquiry%20Report%20to%20CJC%200VERVIEW.pdf.
• R. Fletcher. 2016, November 30. 'Federal Court Justice Robin Gamp Should Be Removed
from Bench, Judicial Committee Recommends,' CBC News. http://www.cbc.ca/news/
canada/calgary/robin-camp-federal-court-judge-inquiry-committee-report-1 .387 4314.
the case, are reported by provincial and territorial judicial councils. 60 The majority of
the complaints received by the CJC are dismissed or resolved behind closed doors.61
A rare instance in which a public hearing was held on whether a judge should
be removed from the bench was the case of Judge Robin Camp, presented in Court
File 7.3.
Some instances of judicial misconduct never come to the attention of the federal
and provincial or territorial councils, owing to potential complainants feeling intimidated by the judge in question, the justice system, and the complaint process. This
may be felt particularly by people in vulnerable and at-risk groups and even members
of visible minorities where a lack of knowledge of the complaint process, suspicion of
the justice system, and language barriers may deter complaints.
It is likely that this occurred in the case of Judge David Ramsay, a provincial court
judge in British Columbia, presented in Court File 7.4. This case highlights the power
that judges wield in the community, as well as the vulnerability of women, especially
young women-in this case, Indigenous young women.
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CHAPTER 7: The Structure and Operation of the Criminal Courts
189
COURT FILE 7.4
THE CASE OF JUDGE DAVID RAMSAY
On June 1, 2004, former Brrtish Columbia Provincial Court Judge David
Ramsay was sentenced to seven years in prison for sexually assaulting
several teenage Indigenous girls in Prince George. He pleaded guilty to one
count of sexual assault causing bodily harm, three counts of buying sex
from minors, and one count of breach of trust. The sentence was two years
longer than Crown counsel had asked for. During the sentencing hearing,
Ramsay apologized to four of his victims, who were in court.
Evidence presented to the court indicated that Ramsay had sexually
abused the young women, who were involved in the sex trade, over a
10-year period, intimidating them into remaining silent about his violent
attacks on them. The girls, some as young as 12, had appeared in court
before Judge Ramsay, who was aware of their life circumstances and
their vulnerabilities. Ramsay was found guilty and sentenced to seven
years in prison. His application for day parole was denied in 2007, and
in 2008, he passed away of an illness in a New Brunswick jail.
The RCMP authorities in Prince George were criticized for their
slow response to the allegations against Ramsay; reports of his abuses
had been circulating in the city for several years. After Ramsay was
sentenced, two RCMP officers who had at one time been stationed in
Prince George were themselves investigated for misconduct amidst
allegations that they had covered up Ramsay's exploits. It was alleged
that one of these officers had had sex with underage prostitutes in
Prince George as well; he was suspended with pay while his case was
being investigated by the RCMP Major Crime section. Because of delays
in the RCMP investigating the case, no further action was taken against
the officer.
The Assembly of First Nations and the Native Women's Association
of Canada called for an inquiry into the administration of justice in
cases involving sexual assault against Indigenous women and young
women. The government did not act on this suggestion.
CASE DELAY IN THE COURTS
The length of time to complete adult criminal court cases varies across the country.
As would be expected, cases involving more serious criminal offences or multiple
charges take longer to complete. 62 However, case delay has been endemic in the
Canadian criminal justice system and, until recently, appeared to be immune from
reform efforts designed to improve the case process. The staying (that is, suspension
or discontinuance) of nearly 100,000 criminal cases a year in Canada is due in part to
failures to get the cases to court within a reasonable period. umerous enquiries have
documented the "c ulture of delay" that exists in the justice system, wherein it is often
years before a final decision is reached in a case.63,6-+
Periodic effo rts by the provinces and territories to address the issue of case delay
have been largely unsuccessful. In Ontario, for example, the Justice on Target initiative was designed to improve case flow in the criminal courts and set benchmarks
for processing various types of cases that were met only approximately 60 percent of
the time .65
THE SOURCES OF CASE DELAY
Case backlog and case delay are due to a number of factors, including a lack of judicial
resources, ineffective use of resources, too few judges, the complexity of criminal cases
(multi-charge cases compose a majority of the cases in criminal court), inadequate case
flow management by chief judges and trial judges, and the efforts of defence counsel to
lengthen the period of time that accused persons are confined prior to trial on remand.
Pers~ns on remand are given two-for-one credit for jail time served prior to sentencing.
lromcally, case delay has not been reduced despite the overall decline in crime rates
over the past decade.
Case delay has had a significant impact on the administration of justice. In 2013, a
British Columbia Supreme Court judge stayed charges against a high-ranking member
of the Hell's Angels on the grounds that his Charter rights had been violated due to the
two-and-a-half-year delay in the case coming to trial. 66 Also, in British Columbia, it took
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Part Ill: The Criminal Courts
NEL
four years after a BC Ferries vessel sunk in 2006 with the loss of two lives for charges
of criminal negligence causing death to be laid by Crown counsel, another three years
for the trial to begin, and another six months before a verdict was rendered (guilty) and
sentence passed.
Case delay also has an impact on crime victims and witnesses to crime, with the
potential that victims are revictimizecl by the process and prevented from reaching
closure on the inciclent. 67
ADDRESSING CASE DELAY: THE sec R. V. JORDAN DECISION
A watershed event in case delays in the criminal courts was the landmark ruling
of the
in R. V. Jordan (20 16
27). Jordan was a British Columbia man
who experienced a four-year delay before being brought to trial on drug charges.
Criticizing what it characterized as a "culture of complacency" in the criminal
justice system, the court dismissed the charges against Jordan and set presumptive timelines for the disposition of cases in the courts from the time the person
is charged to the actual or anticipated end of trial: 18 months for cases tried in
provincial court and 30 months for cases in the superior court (o r cases tried in
the provincial court after a preliminary inquiry). Beyond these time limits, the
delay will be deemed to be unreasonable, unless there are exceptional circumstances. The Jordan decision had an immediate impact on thousands of cases
across the country.
sec
sec
The Jordan case redefined the constih1tional right to a trial within a reasonable time.
Prior to the Jordan decision, judges could determine that case delay violated a person's
constitutionally guaranteed right "to be tried within a reasonable time" under section
l l (b) of the Canadian Charter of Rights and Freedoms and could order a stay of
proceedings or dismissal of the charges. 68
This SCC decision has resulted in hundreds of cases being thrown out by the
courts clue to excessive delays. This included cases involving violence and death.
The case of Lance Regan , a prisoner at the Edmonton Institution , a federal correctional facility, was one such case. Regan was charged with first-degree murder in the
death of another inmate. It had been five yea rs since Mr. Regan had been charged;
the judge dismissed the case against him due to the delay. In another case, charges
of first-degree murder against Adam Picard were stayed after he had been in jail for
four yea rs and the case had not been concludecl. 69 In 2017, the Crown appealed the
decision in the Picard case, requesting a new trial on the basis that the trial judge
erred in the decision. 70
In another case, R. V. Williamson (20 16
28), the
threw out the conviction
over a delay just slightly longer than 30 months. Williamson had been convicted
of sexual offences involving multiple ( 100 times) assaults of a boy during the ages of
10 to 12.
As of the encl of 2017, there were potentially thousands of cases that could be dismissed
or stayed due to excessive delay.
The federal, provincial, and territorial governments pushed back against the Jordan
decision. Federal prosecutors and attorneys general from several provinces argued that
the timelines were too onerous and did not provide enough flexibility to deal with
complex cases. 71 The Jordan ruling has also been criticized on a number of counts,
including that the time guidelines were not based on any analysis, the failure of
the court to distinguish between the seriousness of offences, and its impact on crime
victims who may be revictimized by cases being dismissed. 72
sec
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CHAPTER 7: The Structure and Operation of the Criminal Courts
191
One question is "How did the SCC come up with the timelines in the Jordan case?"
A review of the record indicates that the origins of the timelines is quite interesting.
It occurred during an exchange between Supreme Cout Justice Michael Moldaver
and Jordan's lawyer when the justice asked the lawyer what he would think of having
time limits:
The usuall y eloquent lawyer stumbled. "I don't know, it's probably better than what
we have now."
"What about 30 months?" Justice Moldaver replied.
"I don't know-how about 24?" Mr. Gottardi said.
3
The court subsequently adopted tl1e 30-month time limit for indictable offences.7
In spring 2017 , the SCC was presented with a case that provided it with an oppor74
tunity to revisit and clarity its decision in the Jordan case. James Cody was one
of six persons arrested following a drug investigation; he faced numerous charges,
including drug trafficking and possession of a prohibited weapon. It took five yea rs
for the case to come to trial, during which time Cody was on bail in the community.
Prosecutors cited a number of reasons for the delay, including over 20,000 pages
of evidence, 89 warrants that were used during the investigation, all of which took
1,700 hours of police overtime. In a 7-0 vote, the SCC unanimousl y dismissed
drug and weapons charges against Cody.
It is uncertain how the provinces and territories are going to address this issue .
Suggestions to speed up the flow of cases in the courts have included dispensing with
preliminary hearings, which have been on the decline for the past decade, and having
prosecutors offer early plea bargains to accused in minor criminal cases. 75 In 2017,
prosecutors in Ontario were instructed to skip preliminary hearings and go straight to
trial to avoid lengthy case delays. 76
A 2017 report from the Senate of Canada recommended the expanded use of
restorative justice approaches and highlighted the potential of problem-solving
courts to speed the flow of cases and to address the risk and needs of offenders with
specific challenges.
In 2017, Ontario announced a new initiative to speed up case flow, including
hiring more judges, Crown prosecutors, duty counsel, and court staff, as well as an
increased focus on the early resolution of cases. \1/hether tl1is initiative will be more
successful than previous efforts remains to be seen. It is likely that the Jordan decisions will have the greatest impact on the processing of cases in the criminal courts. It
will be interesting to follow developments as jurisdictions attempt to meet the SCCimposed guidelines.
The use of alternative dispute measures, specialized courts, and restorative justice
approaches hold considerable promise in assisting court systems to reduce the case
delays and backlogs. There has also been an increased focus on tl1e role that judges can
play in reducing case delay. A report from the Canadian Senate indicated that judges
can exercise much more control over proceedings in their courtrooms in an attempt to
avoid case delay.
The actions of criminal lawyers as a contributor to case delay have also come
under judicial scrutiny. In a 2017 decision, the SCC (Quebec Criminal and Penal
26) upheld a ruling of a Quebec judge who
Prosecutions V. Jodoin , 2017
had awarded court costs of $3,000 against a defence lawyer who had engaged in a
number of delay tactics, including attempting to have two trial judges recused for
alleged bias in the case in the same day, and a number of other motions designed
to delay the proceedings. The SCC ruling established the right of judges to resist
sec
192
Part Ill: The Criminal Courts
NEL
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"The way I see it,justice delayed is that many more billable hours."
efforts to delay cases and that such conduct was an abuse of the criminal justice
process. This ruling, in conjunction with the court's ruling in R. v. Jordan, is likely
to reduce case delay.
One issue is whether the solution to case delay resides in pouring more resources into
the criminal justice system as it is currently structured rather than making significant
reforms to the system .
In response to continual requests from the judiciary for more judges, Crown counsel ,
and legal counsel , one media observer wondered how, if the system in Ontario was so
overwhelmed, the trial of an animal rights activist for providing water to a truckload of
pigs on their way to slaughter took a full seven days. The activist had been charged with
mischief, and was subsequently acquitted at trail.7 7
THE CHALLENGES OF MEGA-TRIALS
The criminal courts may be overwhelmed in certain cases that result from a major
tragedy or police enforcement initiative. Stronger enforcement efforts against
outlaw motorcycle gangs and criminal syndicates have resulted in criminal trials
involving multiple defendants, lengthy witness lists, and thousands of pages (and
in many instances, thousands of pieces) of evidence. 78 Also, these types of cases
are expensive.
Canada's most costly trial was the case involving Air India Flight 182, which exploded
and crashed into the Atlantic Ocean off the west coast of Ireland in 1985 while on a
flight from Montreal to London. All 329 passengers on board, most of whom were
NEL
CHAPTER 7: The Structure and Operation of the Criminal Courts
193
Canadian citizens, were killed. The investigation into the bombings centred on certain
individuals in British Columbia's Sikh community, who were involved in the struggle
for an independent Khalistan in India. An Air India Task Force, led by the RCMP and
working alongside police agencies in Europe, India, the United States, and Asia, spent
15 years investigating the case, at one point offering a $1 million reward for evidence
that would help convict the perpetrators.
The Crown proceeded by direct indictment against the remaining two defendants. The trial began in April 2003 and went on for 19 months and 232 court days
until December 2004. It was held in the B.C. Supreme Court in Courtroom 20, in
Vancouver, which had been built at an estimated cost of $7.2 million, specifically
for the Air India trial and for future megatrials. In March 2005 , the presiding judge
found the two defendants not guilty on all charges. By that time, the Air India case
had cost the federal government and the Government of British Columbia a total of
nearly $60 million .
SUMMARY
The discussion in this chapter has centred on the structure and operation of the
Canadian criminal courts. The four levels of courts that deal with criminal cases
were discussed, as well as the role and activities of judges, defence counsel, and
Crown counsel. The issues surrounding the appointment of judges were examined, including the role of politics in the selection process. Problem-solving courts,
centred on the notion of therapeutic justice, have emerged as an alternative to the
traditional adversarial model of justice for vulnerable persons accused of criminal
offences. Unique challenges surround the delivery of court services in remote and
northern communities.
The cases heard by the Supreme Court of Canada often reflect the tension
between balancing the rights of citizens as enshrined in the Charter of Rights
and Freedoms with the need to protect the general public . There has been an
increas ing focus on the judiciary, including the lack of diversity among judges
and judicial accountability. This concern has been heightened by a number of
high-profile cases in which judges behaved in a disrespectful and biased manner
toward accused, particularly in cases involving alleged sexual assault. The SCC
decision in R. v. Jordan is having a significant impact on the processing of cases
through the criminal justice system.
KEY POINTS REVIEW
1. The criminal courts play an important, multifaceted role in the criminal justice
system .
2. There are four levels of courts that deal with criminal cases: provincial/territorial courts,
provincial/territorial superior courts, provincial appellate courts, and the Supreme
Court of Canada.
3. In recent years, a number of problem-solving courts have been created which attempt to
divert offenders with special needs from the criminal justice system.
4. Unique challenges are confronted by provincial/territorial circuit courts that provide
court services to northern and remote communities.
194
Part Ill: The Criminal Courts
NEL
5. There is an inherent tension between individual rights as set out in the Charter of Rights
and Freedoms and the needs to protect the general public, and this is often evident in the
cases heard by the Supreme Court of Canada.
6. The courtroom workgroup is composed of the professionals who work in the criminal
courts and include judges, defence lawyers, and Crown counsel.
7. Defendants in the criminal courts are disproportionatel y Indigenous, Black, and
disenfranchised persons from the lower socio-economic levels of the community.
8. Judges at the provincial/territorial court level are appointed by their respective
governments, while judges of the superior courts are appointed by the federal
government.
9. There are concerns about the process by which judges are nominated and appointed .
10. An ongoing issue is the absence of diversity in the judiciary.
11. There are arguments in favour of, and opposed to, the election of judges.
12. Judi cial ethics and the structures of judicial accountabili ty have come under increased
scrutiny in recent years.
13. In contrast to the police, there is no civilian oversight of the judiciary and the complaint
process is far less transparent than in policing.
14. The longstanding issue of case delay in the courts was add ressed in the SCC decision
of R. v. Jordan.
KEY TERM QUESTIONS
1. Describe the approach of problem-solving courts, provide an example, and disc uss the
effectiveness of these courts.
2. What is therapeutic justice and how does it differ from the traditional approaches of the
criminal court?
3. What is meant by the courtroom workgroup and why is this notion important in
understanding the operation of the crimina l courts?
4. Define judicial independence and discuss how it assists in understanding the role of
the judiciary.
CRITICAL THINKING EXERCISE
Critical Thinking Exercise 7.1
Are Specialized Courts Just "Band-Aids?"
Despite the proliferation of specialized courts across the country, questions have been
ra ised about their objectives and effectiveness. Access the article, "Do 'Specialized Courts'
Have a Real Purpose, or Are They Just Well-Meaning Band-Aids?" at http://vancouversun
.com/opinion/columnists/ian-mulgrew-do-specialized-courts-have-real-purpose-or-are-they
-just-well-meaning-band-aids.
Your Thoughts?
1. What is your response to the arguments being made in this article?
2. What wou ld you consider to be the strengths and weaknesses of the argument that is
being made?
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CHAPTER 7: The Structure and Operation of the Criminal Courts
195
CLASS/GROUP DISCUSSION EXERCISE
Class/Group Discussion Exercise 7.1
Addressing the Lack of Diversity in the Judiciary
A key feature of the Canadian judiciary is a lack of diversity. Despite numerous reports .
identifying the problem, governments have not successfully addresse? 1t. Ari:ion_g _the options
for increasing diversity in the judiciary are quotas, which would require the 1ud1c1ary to reflect
the diversity of Canadian society. This would include the objective of having 50 percent
women judges.
Your Thoughts?
1. What is your opinion on having quotas to increase the diversity of the Canadian judiciary?
2. What other options would you suggest for addressing this issue?
MEDIA LINKS
Cameras in the Courtroom
"Cameras in the Courtroom," The Fi~h Estate, CBC ews, http://uvideoplay.com/video/
Cameras-i n-the-courtroom-the-fi fth-estate-YideoDown load_Un YUVWZLby IQS FE
.html. ote: In this video, a CBC producer speaks about the experience of cameras in
the courtroom in the case presented in "A Mother's Trial."
"A Mother's Trial," The Fi~h Estate, CBC ews, http://uvideoplay.com/video/A-Mother-s
-Trial-the-fifth-estate-VideoDownload_b2tyQlg2OFJuTVU.htinl.
Problem-Solving Courts
"Vancouver's Downtown Commun ity Court," https://www2.gov.bc.ca/gov/content/justice/
criminal-justice/vancouver-downtown-community-court/the-community-court-s-story.
"Mental Health Court," King County TV (Seattle, WA), therapeutic court for mentally ill
offenders, http://www.youtube.com/watch?v=DFIDmuevXQQ
"Drug Courts: Personal Stories," https://www.courtinnovation.org/publications/drug-courts
-personal-stories
"Inside the First Court Designed to Keep Opioid Addicts Alive," Vice
2017, https://www.youtube.com/watch?v=v5-yeP5_KZo
ews, August 7,
REFERENCES
I. A. Maxwell. 2017. "Adult Criminal Court Statistics in
Canada, 2014/2015," furistat, 37(1 ). Statistics Canada
Catalogue no. 85-002-X. Ottawa: Minister of Industry,
pp. 5-6. http://www.statcan.gc.ca/pub/85-002-x/2017001/
article/14699-eng.htm.
4. R. Porter, M. Rempel, and A. Mansky. 2010. What Makes
a Court Problem-Solving? Universal Performance Indicators
for Problem-Solving fu stice. Washington, DC: Center for
Court Innovation. http://www.courtinnovation.org/sites/
default/files/What_Makes_A_Court_P_S.pdf.
2. C.M. Webster and A. . Doob. 2003. "The Superior/
Provincial Court Distinction: Historical Anachronism or
Empirical Reality?" Criminal Law Quarterly, 48(1), 77-109.
5. R. Saner. 2010. Community Perceptions of Red Hook,
Brooklyn: Views of Quality of Life, Safety, and Services. ew
York: Center for Court Innovation. http://www.courtinnovation
.org/sites/default/files/Community_perceptions.pdf.
3. Ci ted in R. Browne. 2016, December 7. "Inside the
Canadian Court That Handles Drug Crime Differently,"
Vice ews. https://news.vice.com/story/inside-tl1e-canadian
-court-tl1at-handles-d rug-crime-differently.
196
Part Ill: The Criminal Courts
6. A.J. Lurigio and J. Snowden. 2009. "Putting Therapeutic
Jurisprudence into Practice: Growth, Operations, and
NEL
Effectiveness of Mental Health Court," fustice System
fournal, 30(2), 196-218.
7. S. Goldberg. 20 I I. Problem-Solving in Canada's Courtrooms:
A Guide to Therapeutic fustice. Ottawa: ational Judicial
Council.
8. F. Sirotich. 2009. "The Criminal Justice Outcomes of Jail
Diversion Programs for Persons with Mental Illness: A
Review of the Evidence," Journal of the American Academy
of Psychiatry and Law, 37(4), 461-472.
9. E. Slinger and R. Roesch. 2010. "Problem-Solving Courts
in Canada: A Review and a Call for Empirically-Based
Evaluation Methods," International Journal of Law and
Psychiatry, 33(4), 258-264.
IO. J. Weekes, R. Mugford, G. Bourgon, and S. Price. 2007.
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11. P. Morin. 20 I 6, July I I. "'Jail Is ottheAnswer': Yukon Courts
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http://www.cbe.ca/news/ca nada/north/ja i1-fasd-wel Iness
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12. MHC participant cited in K.E. Canada and A.C. Watson .
2013 . "'Cause Everybody Likes to Be Treated Good':
Perceptions of Procedural Justice Among Mental Health
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13. Lurigio and Snowden, "Putting Therapeutic Jurisprudence
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14. B. ewton-Taylor, L. Gliksman, and J. Patra. 2009. "Toronto
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15. Department of Justice Canada. 2009. Drug Treatment Court
Funding Program Summative Evaluation. Final Report.
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eng/rp-p r/cp-pm/eval /rep-ra p/09Id tcfp-pfttt/P 2. html .
16. A. Verhaaff. 2011. "Individual Factors Predicting Mental
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17. D. Orr. 2017. "A Criminal or Therapeutic Justice System?
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18. P. Bowen and S. Whitehead. 2016. Problem-Solving
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19. L. Gutierrez and G . Bourgon. 2009. Drug Treatment Courts:
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20. C.T. Lowenkamp, J. Pealer, P. Smith, and E.J. Latessa . 2006.
"Adhering to the Risk and eeds Principles: Does It Matter
for Supervision-Based Programs?" Federal Probation, 70 (3),
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21. S. Johnson. 2014. "Developing First ations Courts in
Canada: Elders as Foundational to Indigenous Therapeutic
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22 . Truth and Reconciliation Commission of Canada. 2012.
Truth and Reconciliation Commission of Canada: Calls to
Action. Winnipeg: http://www.trc.ca/websites/trcinstitution/
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23. P. Maurutto and K. Hannah-Moffat. 2016. "Aboriginal
Knowledges in Specialized Courts: Emerging Practices in
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24. T. Spence and H. Jones. 2017, March 12. "Thunder Bay
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25. D. Vermette. 2008-2009. "Colonialism and the Suppression
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26. P. de Jong. 2003 . Legal Aid Provision in
orthern Canada:
Summary of Research in the orthwest Territories, unavut,
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h ttp://www.justice.gc.ca/eng/rp-pr/aj-ja/rrO 3_la 15-rr0 3
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27. L. Hausegger, M. Hennigar, and T. Riddell. 2009. Canadian
Courts: Law, Politics, and Process. Toronto: Oxford University
Press, p. 104.
28. Ibid., p. I 05.
29. S. Fine. 2017, February 17. "Ontario Judge Rebuked for
Ending Day Early as Delays Pile Up," Globe and Mail.
https://www.theglobeandmail.com/news/national/ontario
-ju dge-ce nsu red-for-sh o rt-s i tti ng-h ours-add i ng-to-d el a ys/
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30. D. Small. 2012. "Canada's High Court Unchains Injection
Drug Users; Implications for Harm Reduction as Standard of
Health Care," Harm Reduction Journal, 9 (1), 34.
31. J. Eisenstein and H. Jacobs. 1991. Felony Justice. Lanham,
MD: University Press of America.
CHAPTER 7: The Structure and Operation of the Criminal Courts
197
32. K.M. Campbell. 2011. "Expert Evidence from 'Social'
Scientists: The Importance of Context and the Impact on
Miscarriages of Justice," Canadian Criminal Law Review,
16 (1), 13-35 atp. 34.
48. J. Makarenko. 2007, February 1. "Supreme Court of Canada
Appoinbnent Process." Mapleleafweb.com [blog]. http://
www. ma pleleafweb. com/fea tu res/supreme-court-ca nada
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33 . Canadian Superior Court Judges Association. 2013. "The
49. C. Forcese and A. Freeman. 2005. The Laws of Government:
The Legal Foundations of Canadian Democracy. Toronto:
Irwin Law.
Role of the Judge." http://www.cscja-acjcs.ca/role_of_judge
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34. J. Cameron. 2013. A Context of Justice: Ontario's Justices
of the Peace - From the Mewett Report to the Present.
Toronto: Osgood Hall Law School of York University, p. 27.
http://digi ta lcommons.osgoode. yorku .ca/cgi/viewconten t
.cgi?article= I 286&context=clpe.
35. B. Powell. 2009, April 16. " o Legal Training, but JPs
Earn $150k," Toronto Star. https://www.thestar.com/news/
gta/2009/04/l 6/no_legal_training_but_jps_earn_l 50k. hbnl.
50. D. Butt. 2016, April 19. "It's Time to Judge the Judges," Globe
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51. P. McCormick. 2012. "Judging Selection: Appointing
Canadian Judges," Windsor Yearbook of Access to Justice,
30 (2), 39-58. http://ojs.uwindsor.ca/ojs/leddy/i ndex.php/
WYAJ/a rticle/view/4 368/344 5.
36. M.S.Madon.2016.TheRetentiono/WomeninthePrivatePractice
ofCriminal Law: Research Report. Toronto: Criminal Lawyers'
Association.
http://www.criminallawyers.ca/wp-content/
uploads/2016/03/ClA-Womens-Study-March-2016. pdf.
52. M. Tutton. 2016, July 18. "Canada Must Boost Racial
Diversity in 'JudiciaryofWhiteness,' Advocates Urge," Toronto
Star. https://www.thestar.com/news/queenspark/2016/07118/
ca nada-must-boost-racial-d iversi ty-i n-j udicia ry-of-wh iten ess
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37. Ibid., p. 8.
53. Ibid.
38. Ibid., p. 26.
54. Quoted in K. Makin. 2012, April 17. "Of 100 Federally
Appointed Judges 98 Are White, Globe Finds," Globe and
Mail. https://www.theglobeandmail.com/news/politics/of-100
-new-federal ly-appoi n ted-j udges-98-a re-white-globe
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39. Ontario Attorney General. 2005. Role of the Crown Counsel.
Preamble to the Crown Policy Manual. Toronto: Author.
http://www.a ttorneyge nera I. jus.gov.on .ca/engl ish/cri me/
cpm/2005/CPMPreamble.pdf.
40. Public Prosecution Service of Canada. 2016. Annual Report
2015-2016. http://www.ppsc-sppc.gc.ca/eng/pub/ar-ra/2015
_20 l 6/index.html#section_l_5.
41. Public Prosecution Service of Canada. 2013. Annual Report
2012-2013. htt:p://www.ppsc-sppc .gc.ca/eng/pub/ar-ra/2012
_2013/03.hbnl, 1.
42. Boucher v. The Queen. [1955] SCR 16, pp. 23-24. https://
scc-csc.lexum.com/scc-csc/scc-csc/en/item/2741/index.do.
43. I. Gomme and M.P. Hall. 1995. "Prosecutors at Work: Role
Overload and Strain," Journal of Criminal Justice, 23 (2),
91-200atp.194.
44. S. Fine. 2017, March 2. "Alberta Prosecutors at 'Breaking
Point' as Abandoned Cases Pile Up," Globe and Mail.
h ttps://www. th egl obea nd ma i I.com/news/na tiona 1/a l berta-p rosec u tors-pus h-ba ck-again st-n ew-tri a 1-1 e ngth-ru Ies/
article34181397.
45. Public Prosecution Service of Canada, Annual Report
2015-2016.
46. J. Eisenstein and H. Jacobs. 1991. Felony Justice. Lanham,
MD: Unive~sity Press of America .
47. L. Hausegger, M. Hennigar, and T. Riddell. 2009.
Canadian Courts: Law, Politics, and Process. Toronto:
Oxford University Press, p. 145 .
198
55. A. Griffith. 2016, May 4. "We
eed a Baseline of
Information About Diversity in Judicial Appoinbnents,
In Order to Evaluate the Government's Promises," Policy
Options. http://policyoptions.irpp.org/2016/05/04/diversity
-among-federal-provincial-judges.
56. C. Holmes.2016, February 12. "'Breaking Barriers': Canada's
First Transgender Judge Sworn in at Manitoba Court," CTV
ews. http://winnipeg.ctvnews.ca/breaking-barriers-canada-s
-fi rst-transgen der-j u dge-sworn-i n-a t-ma n i to ba-cou rt
-1.27754 72.
57. A. Kassam. 2017, April 21. "Canada Judge Who
Wore Trump Hat to Court Faces Disciplinary
Hearing," The Guardian, https://www.theguardian .com/
world/20 l 7 /apr/21 /canada-j udge-bernd-zabel-trumphat-hearing.
58. G. Hamilton. 2014, August 5. "Court Finds Quebec Judge's
'Intrinsically Sexist Attitude' toward Female Defence
Lawyer Grounds for ew Trial," ational Post. http://
nationalpost.com/news/canada/court-finds-quebec-judges
·in tri ns ica 11 y-sexi st-a tti tude-towa rd-fem a Ie-d efen ce-1 awye r
-grou nds-for-n ew-tria I/we m/80fddc6 3-2 69a-4 5 22-90f2
-cef54 56696d 5.
59. S. Dhillon. 2017, March 23. "British Columbia Judge's
Handling of Sexual-Assault Trial Sparks Complaint," Globe
Part Ill: The Criminal Courts
NEL
and Mail. https://www. theglobeandmail.com/news/british
-col um b ia/bri tish-col um bia-j udges-ha nd Ii ng-of-sexua I
-assault-trial-sparks-complaint/article344 l 3039.
60. J. Gallant. 2017, February I l. "Reports Shed Light on
Secretive Discipline Process for Ontario Judges, JPs,"
Toronto Star. https://www.thestar.com/news/gta/2017 /02/11/
reports-sh ed-l igh t-on-sec reti ve-disci pl in e-p rocess-fo r-on ta ri o
-judges-jps.html.
61. S. Lambert. 2016, September 11. "Judicial Hearings Rare:
Most Complaints About Judges ever Get to Public
Hearing," CBC
ews. http://www.cbc.ca/news/canada/
man ito ba/j udici a 1-h ea rings-judge-complain ts-man ito ba
-1.3757735.
62. Department of Justice Canada.2017, April. "JustFacts: Jordan:
Statistics Related to Delay in the Criminal Justice System."
http://justice.gc.ca/eng/rp-pr/jr/jf-pf/2017 /apr0 I .html.
63. D.G. Cowper (Chair). 2012. A Criminal Justice System
for the 21st Century. Final Report to the Minister of Justice
and Attomey General Honourable Shirley Bond. Victoria:
Ministry of Justice and Attorney General. https://www2
.gov.be.ca/assets/gov/law-crime-and-justice/about-be-justice
-system/j ustice-reform-i ni tia tives/cowperfinal report. pd f.
64. The Honourable B. Runciman (Chair) and The Honourable
G. Baker (Co-Chair). 2017. Delaying Justice Is Denying
Justice. An Urgent eed to Address Lengthy Court Delays
in Canada. Final Report of the Standing Committee on
Legal and Constitutional Affairs. Ottawa: Senate of Canada.
h ttps://sen ca nada .ca/content/sen/com mi ttee/4 21 /LC JCl
reports/Cou rt_Delays_Fi nal_Report_e. pdf.
se ri o us-ch a rges-th rown-ou t-d u e-to-tria l-d el ays-a-grow ing
-problem-in-justice-system/article3294 l 0 14.
70. P. Loriggio. 2017, June 11. "Prosecutors Seek ew Trial
for Accused Murderer Freed Due to Court Delays,"
Globe and Mail. https://www.theglobeandmail.com/news/
na ti ona I/prose cu tors-seek-n ew-tri aI-for-a cc used-mu rd ere r
-freed-due-to-court-delays/article3 5280219.
71. T. MacCharles. 2017, April 25. "Provinces Urge Supreme
Court to Relax Tough ew Deadlines for Criminal Trials,"
Toronto Star.https://www.thestar.com/news/canada/20 l 7/04/
2 5/provi nces-u rge-su preme-cou rt-to-relax-tough-new
-deadlines-for-criminal-trials.html.
72. B. Perrin.2017, February 20. "Victims of Crime Pay the Real
Price for Unreasonable Delays," Globe and Mail, https://
www. theglobeand mai I.co m/opi n ion/victims-of-crime
-pay-the-real-price-of-unreasonable-delay/article34077444.
73. S. Fine. 2017, March 10. "Courts Shaken by Search
for Solutions to Delays," Globe and Mail. https://www
. th eglo bea nd ma ii. com/news/na ti ona 1/cou rts-s ha ken
-by-search-for-solutions-todelays/article34275019.
74. T. MacCharles. 2017, April 3. "Supreme Court of Canada
to Revisit Trial Delays Ruling in Upcoming Session,"
Toronto star. https://www. thestar.com/news/canada/2017/
04/0 3/su preme-cou rt-of-canada-to-revisi t-tria 1-delays-rul ing
-in-upcoming-session.html.
75 . Department of Justice Canada. 2017, June. "JustFacts:
Preliminary Inquiries." http://justice.gc.ca/eng/rp-pr/jr/jf-pf/
2017 /jun0 I .hhnl.
65. Ontario Ministry of the Attorney General. 2013. Annual Report,
2012-2013. Toronto: Author. https://www.attomeygeneral.jus
.gov.on .ca/engl ish/a bou t/pubs/mag_annual/annual-rpt_2012
_13.php.
76. S. Fine. 2017, February 22. "Ontario Prosecutors
Told They Can Skip Preliminary Inquiries to Avoid
Delays," Globe and Mail. https://www.theglobeandmail
.com/news/na tiona ]/on ta rio-crowns-tol d-th ey-ca n-s kip
-preliminary-inquiries-to-avoid-delays/article341163 l 2.
66. K. Bolan. 2013, June 4. "Nanaimo Hells Angel Sees
Criminal Charges Stayed after Court Delays," Vancouver
Sun. http://www.vancouversun.com/news anaimo+ Hells
+ Angel +sees+criminal +charges+stayed +after+court/
84 77653/story.html.
77. C. Blatchford. 2017, May 5. "Why Did the Crown Waste
Resources Prosecuting Woman Who Gave Water to Pigs?"
ational Post. http://news.nationalpost.com/full-comment/
c hristie-b la tc hford-on-a ni ta-kra jnc.
67. Runciman and Baker, Delaying Justice Is Denying Justice.
68. lbid.
69. S. Fine. 2016, ovember 18. "Charges Thrown Out Due to
Trial Delays a Growing Problem in Justice System," Globe
and Mail. https://www.theglobeandmail.com/news/national/
NEL
78. The Honourable P.J. LeSage and M. Code. 2008. Report
of the Review of Large and Complex Criminal Case
Procedures. Toronto: Attorney General of Ontario. http://
www.a ttorn eygeneral. jus .gov. on .ca/engl ish/a bout/pubs/
lesage_code/lesage_code_report_en. pdf.
CHAPTER 7: The Structure and Operation of the Criminal Courts
199
CHAPTER 8
THE PROSECUTION
OF CRIMINAL CASES
l!EARNING
OBJECTIVES
After reading this chapter, you should be able to
• Describe the flow of cases through the criminal courts.
• Describe the pre-trial process in the criminal courts.
• Discuss judicial interim release (bail) and the issues that surround its use.
• Describe security certificates and discuss the controversy that surrounds
their use.
• Discuss legal representation for defendants, the provisions for legal aid , and the
issues surrounding remand.
• Describe the practices that encompass the determination of fitness to stand trial.
• Identify the issues surrounding plea bargaining .
• Discuss the role of juries in criminal trials and the research on jury decision-making.
• Identify the various defences that are used by persons charged with a crime.
• Discuss the issues that surround wrongful convictions.
The discussion in Chapter 7 revealed that not all cases in which a person is arrested
end up being prosecuted in criminal court. The development of problem-solving
courts and the use of restorative justice alternatives means that some accused appear in
other forums.
For those whose cases are prosecuted in criminal court, there is a procedure that is
followed. This is set out in Figure 8.1.
FIGURE 8.1 •
Charges may be withdrawn,
may be stayed, or may
result in acquittal 4.
Flow of Criminal Cases through the
Canadian Court System
-
Indictable
Offences
Initial Appearance
(provincial court) 1•2
Charges
Withdrawn/
Stayed
Superior Court,
Judge and Jury4,5 ,_
Preliminary Inquiry
(provincial court) 3
Speedy Trial
(superior court, ,judge alone) 4
~
Absolute
Discharge
Conditional
Discharge
Fine
Summary Trial
(provincial court,
judge alone) 4-6
i---
Information Sworn
(charge laid)
Sentencing L..__,___ Suspended
Hearing7
Sentence
Probation
Restitution
Conditional
Sentence
Incarceration
Offences Reported
to Police
Unofficial
Resolution
Start Here
1
Summary
Summary Trial
Conviction - - - - - - - - --- (provincial or territorial
Offences
court, judge alone) 4
Appearance compelled by summons. arrest, or appearance notice.
2 initial sorting and judicial interim release (bail) are dealt with; election as to mode of trial may occur here or at a later hearing.
3 Bypassed redirect indictment by the Crown, for offences within the absolute jurisdiction of the provincial or territorial court (s.483), and where accused elects a
summary trial.
Charges may be withdrawn, may be stayed, or may result in an acquittal in any mode of trial.
5 This is the only mode of trial for more serious offences (s.427).
6 This is the only mode of trial for less serious offences (s.483).
7 Not all dispositions are available regarding all offences.
4
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CHAPTER 8: The Prosecution of Criminal Cases
201
THE FLOW OF CASES THROUGH THE COURT SYSTEM
Figure 8. 1 outlines tl1e Row of cases ilirough ilie criminal court system. It will be helpful
to refer to this figure as you read through ilie materials in tl1is chapter.
SUMMARY OFFENCES OR PROCEEDING SUMMARILY
When ilie case involves a summary conviction offence, or when the Crown proceeds
summarily, it is resolved in a provincial court. Summary trials do not involve juries, and
ilie sentences are usually less severe. When the accused is charged witl1 an indictable
offence, or the Crown proceeds by indictment on a h ybrid (elective} offence, a different sequence of events unfolds. The Criminal Code (R.S.C. 1985, c. C-46) defines
three categories of indictable offences: (1) offences under tl1e absolute jurisdiction
of provincial courts; (2) offences under the absolute jurisdiction of superior courts;
and (3) electable offences. The key difference is election-that is, the right of the
Summary conviction
offence
accused to choose to be tried by a judge instead of a jury.
Indictable offence
ABSOLUTE JURISDICTION OF PROVINCIALffERRITORIAL COURTS
Generally, a more serious criminal
offence that may carry maximum prison
sentences of 14 years to life; examples
include murder, robbery, and aggravated
sexual assault.
Section 553 of the Criminal Code lists the less serious indictable and hybrid (elective} offences wherein the accused person has no choice but to be tried in a provincial
or territorial court, even if ilie Crown proceeds by indictment. The offences include
ilieft (other than cattle theft), obtaining money on false pretenses, fraud, and mischief
(where ilie subject matter of the offence is not a testamentary instrument and its value
does not exceed $5,000). The list also includes keeping a gaming or betting house and
driving while disqualified. There are no jury trials in provincial court.
ABSOLUTE JURISDICTION OF PROVINCIALffERRITORIAL
SUPERIOR COURTS
Section 469 of tl1e Criminal Code is a list of serious offences that are also non-electable
offences. The list includes murder, treason, and piracy. These cases must be tried in a
superior court before a jury unless botl1 ilie accused and tl1e provincial attorney general
agree to wa ive this right.
The processing of non-electable offences begins witl1 a preliminary hearing, sometimes called a preliminary inquiry. This (usually) short hearing is held to determine
whether there is a prima facie case-tl1at is, sufficient evidence to justify the time and
expense of a criminal trial. A magistrate or provincial court judge listens to some (or all)
of the Crown witnesses. The court may order a publication ban to protect ilie identity
of any victim or witness and is required to order a publication ban to protect the identity of all victims of sexual offences and witnesses of sexual offenders who are less than
18 yea rs old. 1
The judge does not rule on the guilt of ilie accused at the preliminary hearing, but
must decide if ilie Crown has evidence that could be used to prove guilt. If ilie judge
does so decide, iliere is a prima facie case. If tl1ere is not a prima facie case, the judge
will dismiss the case or at least dismiss the problematic charges against the accused.
Usually, the matter is committed to trial , and a trial date is set. The accused person can
wa ive tl1e right to a preliminary hearing and go directly to trial.
In rare cases, generally involving more serious all egations, the provincial attorney
general can skip the preliminary hearing and go straight to trial. This course of action
is called "preferring tl1e indictment." Recall from the discussion in Chapter 7 that dispensing with preliminary hearings has been suggested as a way to speed up the Row of
cases in the courts.
202
Part Ill: The Criminal Courts
Generally, a less serious criminal offence
that is triable before a magistrate or
judge and, on conviction, carries a
maximum penalty of a fine (not to
exceed $5,000} or six months in a
provincial correctional facility, or both.
Hybrid (or elective}
offences
Offences that can be proceeded
summarily or by indictment-a decision
that is always made by the Crown.
Preliminary hearing
A hearing to determine if there is
sufficient evidence to warrant a
criminal trial.
NEL
ELECTABLE OFFENCES
Most indictable offences fall into neither of the two categories just described. These are the
electable offences, and the accused person has three modes of trial from which to choose:
(1) trial by a provincial or territorial court judge; (2) trial by a superior court judge sitting
alone; or (3) trial by a superior court judge and a jury. The Charter of Rights and Freedoms
guarantees the right to a jury trial if the alleged offence carries a maximum sentence of
more than five years' imprisonment. However, not every accused person wants a jury trial.
Once an accused person has elected, he or she can re-elect another option or enter
a guilty plea, in which case there will not be a trial. It is also possible (a lthough this
happens rarely) that the provincial attorney general may intervene and require a jury
trial if the offence is punishable by more than five years' imprisonment and if the
accused has chosen one of the first two options. Accused persons who choose option
1 do not have a preliminary hearing and waive their right to trial by jury. Accused
persons who choose option 2 or 3 are entitled to a preliminary hearing unless they
waive that right. Accused persons who abscond and who fail to appear for trial by jury
on the appointed court date may lose their right to a jury trial.
THE PRE-TRIAL PROCESS
There are a number of steps involved in bringing a case to criminal court, and a major
role is played by Crown counsel. This process must be mindful of the accused's Charter
rights. Included in section 11 of tl1e Charter, "legal rights" are tl1e right for every citizen
(a) to be informed without unreasonable delay of the specific offence;
(b) to be tried within a reasonable time;
(c) not to be compelled to be a witness in proceedings against that person in respect
of the offence;
(d) to be presumed innocent until proven guilty according to law in a fair and public
hearing by an independent and impartial tribunal;
(e) not to be denied reasonable bail without just cause;
(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the
offence is imprisonment for five yea rs or a more severe punishment;
(g) not to be found guilty on account of any act or omission unless, at the time of
the act or omission, it constituted an offence under Canadian or international
law or was criminal according to the general principles oflaw recognized by the
community of nations;
(h) if finall y acquitted of the offence, not to be tried for it again and, if finall y found
guilty and punished for the offence, not to be tried or punished for it again; and
(i) if found guilty of the offence and if the punishment for the offence has been
varied between the time of the commission and the time of sentencing, to the
benefit of the lesser punishment.
Sections 12 tl1rough 14 of tl1e Charter continue:
12. Everyone has the right not to be subjected to any cruel and unusual treatment
or punishment.
13. A witness who testifies in any proceedings has the right not to have any
incriminating evidence so given used to incriminate that witness in any other
proceedings, except in a prosecution for perjury or for the giving of contradictory
evidence.
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CHAPTER 8: The Prosecution of Criminal Cases
203
14. A party or witness in any proceedings who does not un~erstand or speak the
language in which the proceedings are conducted or who 1s deaf has the nght to
the assistance of an interpreter.
LAYING AN INFORMATION AND LAYING A CHARGE
The police are usually responsible for laying an information, which is then ratified or
rejected by the Crown. An infonnation is a document that briefly outlines an allegation
that a person has contravened a criminal law in a certain location during a specified
period. Multiple offences are divided into separate counts.
ot all cases must be brought before a justice of the peace (JP). For certain offences,
police officers are authorized to issue summons, traffic offence notices, appearance
notices, and promise-to-appear notices. In such cases, accused persons are released on
their own recognizance , which m eans they are responsible for ensuring that they appear
in court on the designated date.
The information may be laid either after the suspect has been informed (as in tl1e case
of an arrest without a warrant or the use of an appearance notice) or before (see Figure
8.1). Remember from Chapter 5 that tl1ere are a limited number of circumstances in
which the police can arrest without a warrant; there is a presumption tlrnt an appearance
notice will be used for most cases. On receiving the information, the JP may not agree tl1at
the informant has made out a case; in practice, however, this rarely happens. If the JP
determines there is sufficient reason to believe that a crime has been committed, the
JP will issue either a warrant for the arrest of the person named in the information, or a
summons that directs the named person to appear in provincial court on a specified elate.
The police and the Crown exercise a considerable amount of discretion in deciding
whether to lay a charge.2 Charges are not laid in one-third of all violent crimes and property crimes tl1at are cleared by the police, and across the country, 30 percent of all criminal cases are stayed, dismissed, or withdrawn by prosecutors and juclges. 3 Reasons for not
charging include the following: The victim or complainant is reluctant to cooperate; tl1e
suspect or an essential witness dies; or the suspect was committed to a psychiatric facility or
was under the age of 12. TI1e judiciary, including the Supreme Court of Canada (SCC),
have been reluctant to review prosecutorial decision-making; however, tl1e Supreme Court
has held that provincial law societies are permitted to review such decisions to ensure
adherence to professional standards (Krieger V. Law Society ofAlberta, 2002
65).
Legal, administrative, and political factors may also influence the decision to lay a
charge. Legal considerations include the reliability and likely admissibility of available
evidence and tl1e credibility of potential witnesses. Administrative factors include tl1e
workload and case volume of the Crown counsel's office, as well as the time and cost of
prosecution relative to tl1e seriousness of tl1e crime. Political considerations include the
need to maintain the public's confidence in the justice system.
In New Brunswick, Quebec, and British Columbia, the Crown must give approval
before the police can lay a charge. Once the decision has been made to lay a charge, a
police officer can initiate the process by laying an information before a JP. When doing
so, the officer is called an infonnant. In practice, most informants are police officers,
but any person can lay an information if they, on reasonable grounds, believe that a
person has committed an offence.
sec
COMPELLING THE APPEARANCE OF THE ACCUSED IN COURT
After a prosecution has been initiated, the next step is to ensure that tl1e accused appears
in court to answer the charge. This can be accomplished in a number of ways-for
204
Part Ill: The Criminal Courts
NEL
example, by arresting and placing the accused person in remand custody until the court
appearance, or by allowing the accused person to remain at liberty in the community
with a promise to appear on the court date. If the accused person does not appear, the
judge can issue an arrest warrant. Figure 8.2 illustrates the various ways to compel an
accused person to appear in court.
APPEARANCE NOTICE
If the alleged offence is not serious and the police have no reason to believe that the accused
will fail to appear in court, an appearance notice can be issued followed by the laying of
an information. The appearance notice sets out the details of the allegation against the
accused person, provides the court date, and warns the accused that failure to appear in
court is a criminal offence. If the charge is an indictable or elective offence, the appearance notice directs the person to appear at a specific location to be fingerprinted, pursuant
to the Identification of Criminals Act (R.S.C . 1985, c. I-1 ). If the suspect is a young person,
the appearance notice emphasizes the right of accused youths to legal representation.
SUMMONS
Another option is for the police to lay the information first, in which case the JP will likely
issue a summons, which briefly states the allegation and directs the person to appear
in court on a certain day. The fingerprint demand is also made, where applicable, as is
the statement about youths' right to counsel under the Youth Criminal Justice Act (S.C.
2002, c. 1). The summons is then served on the accused, usually by a police officer.
If the accused does not appear in court, and if there is proof that he received the summons, the judge may issue a bench warrant for his arrest; in addition, the accused may
be charged criminally with failing to appear in court.
Commission of offence
and investigation
Either
Or
Or
Appearance notice
issued by police officer
Accused arrested
without warrant
Laying of information
before J.P.
Release of accused
by officer in charge
Laying of information
before J.P.
Laying of information
before J.P. to cancel
or confirm
Warrant of arrest of
accused
Issuing of summons of
accused
Release by officer in
charge if warrant
endorsed
Bail hearing
•
t
Judicial interim
release
Detention
before trial
+
FIGURE 8.2 •
Compelling the Appearance
of the Accused
NEL
First court appearance
by accused
Sources: A.W. Mewett and Mr. Justice Shaun Nakatsuru. 2001 . An Introduction to the Criminal Process in Canada (4th ed .).
Toronto: Carswell, p. 72. Reproduced by permission of Thomson Reuters Canada Limited.
CHAPTER 8: The Prosecution of Criminal Cases
205
ARREST
If the situation dictates, the police can arrest without a warrant (see Chapter 5) and then
lay the information . Or, if there is time, an officer may seek an arrest warrant from a
JP. Following the arrest, the next decision to be made is whether to release the accused
from police custody or keep him or her in custody. Remember that the C!1arter protects
people from arbitrary detention. The presumption is that everyone will be released
from police custody after arrest.
There are only three circumstances in which immediate release might not occur: (1)
The charge pertains to a serious indictable offence carrying a maximum sentence
of more than five years in prison; (2) the police have reasonable grounds to believe
the person will not appear in court; and/or (3) the police have reasonable grounds
to believe it is necessary, in the public interest, to detain the accused. The public
interest is defined as the need to establish the person's identity, to secure or preserve
evidence, or to prevent the continuation or repetition of the offence or the commission
of another offence.
A notable exception involves situations where a person is arrested pursuant to a security certificate (see below).
RELEASE BY THE POLICE
When issuing an arrest warrant, the JP usually gives the police some direction as to
whether the accused person should be detained or released. When an arrest is made
without a warrant, the police have the authority to release some accused persons from
police custody; however, in some circumstances a bail hearing before a JP or a judge is
required. When the offence is summary or elective (or one of a specified list ofless serious
indictable offences, including theft under $5,000), the arresting officer can simply issue
an appearance notice or explain that a summons will be sought. In these circumstances,
even those persons who have been arrested need not be placed in police custody.
For indictable offences carrying a maximum prison sentence of five years or less, the
officer in charge of the police lockup has the authority to release the person from police
custody. Several means are available to the officer in charge to compel the accused's
later appearance in court. Beginning with the least consequential , they are a promise
to appear, an undertaking to appear, and a recognizance not exceeding $500 (with or
without deposit).
There are a number of steps involved in bringing a case to criminal court. In considering
the prosecution process, it is important to note that there is considerable case attrition and
that many cases do not progress very far into the system. Also, the police or the Crown send
many offenders to alternative measures programs under various diversion schemes. This
includes diverting offenders to the problem-solving courts discussed in Chapter 7.
THE DECISION TO LAY A CHARGE
As noted earlier in this chapter, the police and the Crown exercise a considerable
amount of discretion in deciding whether to lay a charge. 4 Consequently, not all crime
victims support charges being filed. Victims of domestic violence or spousal assault, for
example, may refuse to cooperate with the Crown for a variety of reasons, including
fear of retaliation, economic insecurity, and family pressures. Also, victims who are also
involved in criminal activities (such as gang members) may be understandably reluctant
to appear in court and to provide testimony against accused persons. In tl1ese circumstances, crime victims may not make use of the specialized services that are available.
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Part Ill: The Criminal Courts
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JUDICIAL INTERIM RELEASE (BAIL)
[T]h~ bail system places heavy demands on the criminal justice system, ones that
are d1fficul_t to satisfy. It is at the core of the system, not only because the outcomes
of proceedmgs are so closely watched-although the details are protected by publicati_on bans-but also because the system must balance the argument for detention
agamst the presumption in favour ofbail.5
Judicial interim
release (bail)
The release of a person charged with
a criminal offence prior to trial.
Judicial interim release (bail) is the release of a person who has been charged with a
criminal offence. It is overseen by a judicial functionary-usually a JP, but by a superior
court judge if the offence is a serious one, such as murder. A person in police custody
who is not released by the officer in charge must be brought to court within 24 hours or
as soon as is reasonably possible. In addition, if the arrest warrant was issued by a JP, the
police must bring the arrested person before a JP unless release was authorized when
the warrant was issued.
Persons can be detained by the court only in situations where it is necessary to ensure
attendance in court, to protect the public, and to maintain confidence in the administration of justice. The JP or judge must determine whether the accused will be released
or will remain in custody until the case is disposed of. Section l l (e) of the Charter
stipulates that any person charged with an offence has the right "not to be denied reasonable bail without just cause." Section 515 of the Criminal Code, entitled "Judicial
Interim Release," requires judges to release accused persons on bail unless tl,e Crown
can show why bail should be denied.
If the Crown chooses to oppose tl,e release of the accused, the Crown must demonstrate, at a show cause hearing, that detention of the accused until tl,e trial date is necessary. In support of the recommendation that tl,e accused be held in custody, the Crown
can produce evidence of prior criminal convictions, other charges currently before the
courts, or previous instances of failing to appear in court. In some cases, reverse onus
applies; in other words, tl,e accused must "show cause" why a release is justified. These
situations include when the alleged indictable offence occurred while tl,e person was
on bail for another charge.
Detained persons seeking pre-trial release are often required to make multiple
appearances in court before a ruling is made; overcrowded court dockets and a lack of
personnel to participate in bail hearings are among tl,e probable reasons for the delays.
Accused persons may also be asked to enter into a recognizance in which they agree
to forfeit a set amount of money if tl1ey fail to appear in court. Generally, there is no
requirement that tl,e money be produced before the accused is released . However, a
monetary deposit may be required if the accused is not normally a resident of tl,e province or lives more than 200 kilometres away.
Another option is to release tl1e accused on a recognizance in which a surety promises to forfeit a set amount of money if the accused fails to appear in court. A surety
is a friend or relative who agrees to ensure tl,e accused person's appearance for trial.
In most cases involving a surety, a deposit is not required. However, if a large sum of
money is involved, tl,e existence of collateral to guarantee the payment may have to
be demonstrated. If a surety withdraws support, tl,e accused will be placed in custody
unless another surety is immediately available.
ote tl,at bail in Canada is different from the bail often seen on American television.
In the United States, a deposit of money is required in order to guarantee a person's
appearance in court; this practice is followed only in exceptional cases in Canada.
There are in tl,e U.S. bounty hunters who, on behalf of bail companies, track persons
who have "skipped" bail. Canadian courts are generally sensitive to the possibility tl,at
NEL
CHAPTER 8: The Prosecution of Criminal Cases
207
cash bail requirements could leave accused persons of modest means to languish in
custody while their more affluent counterparts remain free while awaiting trial. This
principle that cash bails is not to be required in most cases was reiterated by the SCC
in the case of R. V. Kevin Antic (20 17
27). In its judgment, the court expressed
concerns that persons in poverty and other marginalized persons would be unfairly
sec
penalized if cash payments were required .
THE CONDITIONS OF BAIL
If the JP or judge decides to release the accused, the conditions under which that
release will take place must be determined. Again, the Crown must show cause why
conditions should be attached to the release. There are "statutory" and "other" conditions of bail. Statutory conditions include reporting to a bail supervisor, while other
conditions may include abstaining from alcohol or drugs, being under house arrest,
and/or not having contact with certain persons. Young offenders may be required to
live with a responsible person who agrees to guarantee that they will appear in court.
In some regions of the country, accused persons who are released on bail may be
subject to bail supervision by probation officers and/or electronic monitoring (see
Chapter 10). Accused persons who violate the conditions of release or who fail to
appear in court at the designated time may have new charges filed against them for
failing to comply. This offence carries a sentence of two years in jail if it is processed
as an indictable offence.
There has been a trend toward increasing the number of bail conditions and the
length of bail supervision due, in part, to increasing concerns with risk aversion in the
criminal justice system. This has led some observers to argue that persons on bail are
being "set up for failure" and are at high risk of being charged for failing to comply. 6•7
There are also concerns that low-income persons, Indigenous persons, racialized
minorities, and persons with mental health and addiction issues are disproportionately
impacted by the current manner in which the bail system operates.8
A study by the John Howard Society of Ontario found that 70 percent of the persons on bail had substance abuse issues, 40 percent had mental health issues, and
30 percent had concurrent challenges with both. The study found that "abstaining from
drugs" and "abstaining from alcohol" were often imposed as conditions of bail and were
closely related to failing to comply. As one lawyer commented, "The minute they don't
comply, that's another offence. It's not a crime to drink alcohol but once it gets put
into your bail conditions, drinking alcohol is an offence. It's an enormous pressure on
people when they're on a long list of conditions." 9 In addition, considerable time and
expense may be incurred by police services in rearresting offenders who have violated
the conditions of their bail release. Figure 8.3 presents information on the use of bail
and remand in Ontario.
ASSESSING RISK
It important that decisions to grant bail be carefully considered to ensure that the
accused will abide by the conditions of the release and does not present a risk to the
community. The decision of prosecutors to release an accused person on bail can have
devastating consequences. In 2007, Peter Lee went on a killing spree in the community
of Oak Bay, British Columbia, killing his wife, six-year-old son, his in-laws, and, finally,
himself. Lee had previously attempted to kill his wife by driving his car, in which his
wife was a passenger, into a pole. Over the expressed opposition of the police, Crown
prosecutors allowed Lee to be released on $5,000 bail with the condition that he have
no contact with his wife. Even though Lee began stalking his wife and violated other
208
Part Ill: The Criminal Courts
NEL
FIGURE 8.3 •
The Mounting Costs of Bail and
Remand in Ontario
Question: What does the information in Figure
8.3 suggest about the current use of bail and
remand in Ontario, and what issues need to
be addressed?
Q)
) $338 million (
Cost of pre-trial detention
in Ontario in 2013-2014
Bail: Jail vs Community
Source: Adapted from John Howard Society
of Ontario. 2014. "Bail Remand lnfographic. •
http://www.johnhoward.on.ca/wp-contenV
uploads/2014/10/Bail-Remand-lnfographic.pdf.
50%
of criminal court cases
start in bail court
70%
$5
of cases detained pre-trial
are for non-violent charges
cost per day
Awaiting bail or trial in jail
60%
of provincial prisoners
are on remand
-
20%
of people admitted to
remand are there for
administration of justice
(e.g. breaching curfew)
Supervised bail in community
Percentage of people under bail supervision in Ontario who face these issues
70%
40%
33%
30%
Substance abuse
Mental health issues
Homelessness
Concurrent mental health
and addiction issues
bail conditions, prosecutors did not have him arrested and he remained free, subsequently committing the murders.
In a subsequent coroner's inquiry into the incident, it was requested that the prosecutors, who did not oppose the decision to release Lee from police custody, testify before
the inquest. The provincial government refused to make the prosecutors available to
testify, a decision that was upheld by the B.C. Supreme Court which held that forcing
the prosecutors to testify would infringe on their professional independence. eedless
to say, this case generated considerable controversy. It has been suggested tl1at risk
assessments be conducted on certain accused persons, particularly in cases involving
domestic violence. I0
THE CHANGING NATURE OF JUDICIAL INTERIM RELEASE
A number of legal scholars have argued that, as currently practised, judicial interim
release is not being utilized as intended under the Bail Refonn Act ( 1972). More specifically, critics contend ratl1er tl1an being tl1e exception as envisioned by the Bail Refonn
Act, the grounds for detention have been expanded. This has resulted in increasing
numbers of accused persons being held in remand, despite falling crime rates (see
Chapter 11 ).
A concern is that the presumption of innocence, a cornerstone of the legal system, is
being undermined and that tl1e number of "legally innocent" persons in jail has been
increasing. II The changes in how bail is used in the criminal courts has been ascribed,
in part, to a punitive penology and to an increasing aversion to risk among criminal
justice decision-makers. 12
NEL
CHAPTER 8: The Prosecution of Criminal Cases
209
The report on bail produced by the John Howard Society of Ontario found that "less
people are being released on bail, less quickly, and with more conditions, during a time
of historically low and still-declining crime rates." 13 There is also evidence that accused
persons who are denied bail and are remanded into custody increases the likelihood
that the accused will accept a plea bargain. 14, 15 Overcrowding in certain provincial and
territorial correctional facilities has been tied to the increasing numbers of persons who
are denied bail. 16
Research studies have found that the decision to grant bail is inAuenced by a number
of factors, including the number of criminal charges pending, whether the accused has
a fixed address, and any concerns raised by background information on the accused
provided by the police, including prior criminal activity. Men also appear to be denied
bail more often than women.
A study of eight bail courts in five provinces and territories found that the system
was not operating in accordance with the law and often contrary to the Charter of
Rights and Freedoms. 17 The bail process was found to be overly risk-adverse and to
penalize persons in poverty, the addicted, and persons with mental illness. There are
also a number of issues surrounding the use of bail , which, it has been argued, fails
those persons who require legal aid. 18
Of particular concern was the lack of access to bail for accused persons in remote and
northern communities. If not released by the police, the accused in these regions were
19
often Aown out to a detention centre to have their bail application processed.
Of concern is the revolving door of pre-trial detention, wherein accused persons are
granted bail with conditions that may set the person up to fail (e.g., conditions that require
abstinence by persons addicted to alcohol or drugs, residency requirements for persons
who are homeless, and reporting requirements for persons who may have a mental illness
or otherwise have difficulty attending an office at a specific time or location).20
Since the failure to comply with the conditions of bail is a criminal offence, this often
creates a "revolving door" wherein accused persons are criminalized for behaviour that
is otherwise not a crime. 21 These infractions are categorized as "administrative of justice" charges, and the number of these offences has also increased in recent yea rs, due
in large measure to violations of bail conditions.
A study in Vancouver found that 20 percent of the orders for persons released after
being charged with a criminal offence contained a "no go" or "red zone" condition,
which restricted them from certain areas of the city. These conditions disproportionately impacted poor and marginalized persons who were prevented from returning to
the neighbourhoods where they could access services and shelter. 22
PRE-TRIAL REMAND
Remand refers to accused individuals who have been charged and detained in custody
and have either been denied bail , or have yet to appear before a judge, or are awaiting
sentencing or the commencement of a custodial sentence. Persons are remanded into
custody through the issuance of a warrant of committal by a JP or judge. Other accused
are placed in custody after violating their bail conditions. All prisoners on remand are
held in maximum-security facilities, regardless of the alleged offence and their criminal
record, and have minimal access to programs and services. 23
The number of persons detained on remand in provincial and territorial jails has tripled in the past three decades, and this population now represents nearl y 60 percent of
persons in these facilities. 24 The numbers of persons on remand outnumber sentenced
offenders in confinement in most jurisdictions. There has also been an increase in the
210
Part Ill: The Criminal Courts
Remand
The status of accused persons in
custody awaiting trial or sentencing.
NEL
length of time spent on remand. 25 In Saskatchewan, there was a 104 percent increase
in the number of persons on remand between 2006 and 2016. This was a major contributor to a 51 percent increase in provincial prison populations during this time_26
This means there are more persons being held on remand who have not been found
guilty of any crime than there are persons who have been found guilty and sentenced.
This includes an increasing number of women who are not serving sentences. 27 In
Saskatchewan, for example, one-half of the persons in jail are on remand, awaiting trial.
early one-quarter of those on remand are in prison for offences against the administration of justice-for example, breach of probation or bail conditions, or failure to
appear in court. 28 Because offenders on remand are housed in provincial/territorial
institutions, the increase in their numbers is straining resources and leading to overcrowding, an issue discussed in Chapter 11.
The costs of keeping a person awaiting trial in remand are high. In Ontario, it
is $80,000 per year, compared to approximately $40,000 per year for a sentenced
inmate. 29 Having persons on bail is much cheaper in Ontario as well: The per diem
cost of incarcerating an adult on remand is about $183 per day, as opposed to about
$5 per day if the person is on bail and under supervision in the community. 30 This
is significant, given the small number of offenders on remand who are ultimately
sentenced to custody (see Figure 8.3).
Remand populations include persons charged with violent offences but also persons
with mental health and addiction problems. This presents challenges to correctional
staff, whose role is generally limited to custody-type activities. It has been argued that
the conditions faced by persons in remand violate international human rights standards, which require that those on remand who have not been convicted of a crime be
held in conditions better than those for sentenced offenders. 31
Research has found that pre-trial detention can exert pressure on accused persons to
plead guilty. 32 As one accused person in remand stated:
She [his lawyer] said, "If you're willing to pay a fine, the charges of armed assault,
attempted murder, and robbery will be dropped. And if you plead guilty to dangerous driving and you pay a fine, they are willing to release you in two weeks from now.
Otherwise, if you persist in pleading not guilty, you'll go back in custody waiting for a
trial date and you face four years in prison." So, what do you think I sa id? 33
Innovative approaches are required to reduce the larger numbers of persons on
remand. In Manitoba, the John Howard Society (JHS) operates a residential facility
that houses medium- to high-risk males who are on remand. This diversion program
provides an opportunity for the men to take programming that would be unavailable
had they been held in a provincial facility. The JHS also supervises a number of persons
in the community who would otherwise be incarcerated while awaiting trial (http://
www.johnhoward.mb.ca/wp/).
The persons participating in this program are more likely to observe the conditions
of their bail and have a lower conviction rate than persons who are kept in remand who
are subsequently released, evidence that tl1ere are lower-cost and effective remedies to
tl1e current remand situation. 34
Security certificates
SECURITY CERTIFICATES
A process whereby non-Canadian citizens who are deemed to be a threat to
the security of the country can be held
without charge for an indefinite period
of lime.
Under tl1e Immigration and Refugee Protection Act (S.C.2001, c. 27), security certificates
can be issued against non-citizens (visitors, refugees, or permanent residents) in Canada
who are deemed to pose a threat to national security. These persons can then be held
in detention , witl1out charge, for an indefinite period of time. The certificates must be
NEL
CHAPTER B: The Prosecution of Criminal Cases
211
COURT FILE 8.1
THE CASE OF MOHAMED HARKAT
Mohamed Harkat entered Canada in 1995 from Algeria using a fake Saudi Arabian passport. In 1997,
he was granted refugee status and in 2001 married a Canadian citizen. In 2002, Harkat was detained
under a national security certificate, which declared him to be an agent of the terrorist organization
al Qaeda and a threat to Canada. In 2006, Harkat was released on strict bail conditions. In 2013, his
lawyers appeared before the sec to argue that the process violates the Charter because it requires
very little evidence about the allegations that a person poses a security threat to Canada. The SCC
heard the case behind closed doors and, in its ruling in 2014, upheld the constitutionality of the security certificate. As of late 2017, the federal government was attempting to deport Harkat to Algeria.
Sources: J. Bronskill. 2016, March 17. "Facing Deportation, Mohamed Harl<at Plans to Ask Government to Let Him Stay
in Canada," CTV News. https://www.ctvnews.ca/politics/facing-deportation-mohamed-har1<at-plans-to-ask-govemment
-to-let-him-stay-in-canada-1.2820814; L. MacKinnon. 2014, May 14. "Mohamed Harllat Security Certificate Upheld by
Top Court," CBC News. http://www.cbc.ca/news/politics/mohamed-har1<at-security-certificate-upheld-by-top-court
-1.2642459; Canada (Citizenship and Immigration) v. Harl<at, 2014 sec 37.
signed by both the minister of citizenship and immigration and the minister of public
safety and emergency preparedness. ote that security certificates are not a criminal
proceeding, but a process within the Immigration and Refugee Protection Act.
Foreign nationals who have a security certificate issued against them are automatically detained; permanent residents may be also detained if it is determined that they
are a danger to society or are likely not to appear for court proceedings. Otherwise,
permanent residents can be released under strict bail conditions.
A security certificate allows indefinite detention without charge or trial. The government is required only to provide a summary of the case against the person who is subjected to a security certificate. Case proceedings are usuall y conducted in secret. The
reasonableness of the security certificate is reviewed by a judge of the Federal Court. If
the court upholds the security certificate, it becomes a removal order from Canada and
the person is deported to his or her home country. The Federal Court's decision in cases
involving security certificates is final and cannot be reviewed. The case of Mohamed
Harkat, who is the subject of a security certificate, is presented in Court File 8. 1.
Amnesty International and other human rights groups have argued that the security
certificate process violates fundamental human rights, including the right to a fair trial
and the right to protection against arbitrary detention. Of concern is that much of the
evidence in security certificate cases is heard in camera (behind closed doors), with only
the Federal Court judge and government lawyers and witnesses present. Although persons
who have been detained receive a summary of a portion of the evidence, the specific allegations against them and the sources of the allegations are not disclosed to the detainee.
As well, evidence against the detainee may be presented in court without the detainee
and his or her lawyer being present; this precludes a cross-examination of witnesses.
The ongoing controversy surrounding security certificates highlights the ongoing
challenge of balancing individual rights with those of society. The debate is likely
to continue.
DEFENDANTS' ACCESS TO LEGAL REPRESENTATION
All adults accused of crimes have the right to retain legal counsel. The Charter of
Rights and Freedoms stipulates that persons who are arrested and detained must be
informed of this fact, and they must be permitted to contact a lawye r before giving a
212
Part Ill: The Criminal Courts
NEL
statement, if they so choose. The right to retain legal counsel levels the playing field, so
to speak, between the accused and the police and Crown attorney. Most Canadians are
unaware of their rights or the intricacies of this country's complex legal system . In our
adversarial system, the police and prosecution enjoy the home field advantage and the
lawyer is on the defendant's team .
'
Most accused persons require legal representation, yet not all of them can afford a
lawyer. There is no blanket right to state-paid legal representation. At arrest, the police
officer recites this Charter warning: "It is my duty to inform you that you have the
right to retain and instruct counsel without delay" (see Police File 5.4). The right to
retain counsel, however, does not impose an absolute duty on provincial governments
to provide all accused persons with free counsel (see the discussion of legal aid below).
However, all persons who are arrested or detained must have the opporhmity to access
preliminary advice from duty counsel through a toll-free telephone line, where such
services exist.
In the case of R. v. Prosper ((1994] 3 SCR 236), the SCC ruled that detainees must
be told they may qualify for free counsel if they meet the financial criteria of the local
legal aid plan . However, the Supreme Court has also ruled that impoverished persons
do not have a blanket right to legal counsel and that it was within the authority of the
provincial/territorial governments to determine guidelines and criteria.
A major challenge in the territories is ensuring that accused persons have representation prior to their first appearance. Representation is often done over the telephone
and is often of poor quality.35
LEGAL AID FOR THE ACCUSED
Clearly, it would be unacceptable for wealthy criminal defendants to have lawyers
while poor defendants go unrepresented. At the same time, the universal provision of
free legal representation would be expensive. There are also concerns about whether
free representation can be as good as representation paid for by the accused.
Although every province/territory has a legal aid plan, Canada's jurisdictions vary
greatly with respect to which types of cases qualify for assistance and which income
levels are sufficiently low that an applicant is entitled to full or partial coverage. In
recent years, several provinces have lowered the qualifying income levels as one means
of stemming the dramatic rise in legal aid costs. Also, some types of cases no longer
qualify for legal aid. It is not uncommon, for example, for applicants to be required to
demonstrate that they face tl1e very real prospect of being incarcerated for the offence.
The stringent requirements to qualify for legal aid have been identified as a major
impediment to access to justice. 36
Across the country, legal aid services are delivered by lawyers in private practice, who
are paid by a legal aid plan, by legal aid staff lawyers, and by lawyers working in legal
aid clinics.37
There is an extensively documented crisis in legal aid in Canada, including
underfunding, disparities in coverage, fragmentation wherein a client may qualify
for legal aid only for a portion of their legal problem, and a lack of access to legal
aid services among marginalized groups including Indigenous persons, newcomers,
the poor, and others .38
This is a major issue in the larger debate over access to justice and the concern
over the increasing numbers of persons in criminal courts who are self-represented.
Judges are sensitive to the rights of persons who do not have legal counsel. In one
case, the Ontario Court of Appeal ordered a new trial for a person convicted of
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CHAPTER 8: The Prosecution of Criminal Cases
213
possession and trafficking of drugs on the grounds that the trial judge failed to inform
the accused, who was self-represented, about potential violations of his Charter
rights by the police. 39
FITNESS TO STAND TRIAL
A fundamental principle of the common law is that the accused person must be fit to
stand trial. During the early stages of the court process, a lawyer may suspect that his
or her client is suffering from some degree of mental illness. The existence of a mental
disorder at the time of the offence may be integral to the defence strategy. However,
mental disorder is a concern for another reason. Accused persons who cannot understand the object and consequences of the proceedings because of mental disorder are
unfit to stand trial. In other words, they are unable to instruct their counsel or even fully
appreciate that they are on trial.
At the request of the defence counsel or on its own initiative, the court may order
that the accused person be assessed to determine fitness. That order is normally in force
for no more than five working days, but a longer period can be ordered in "compelling
circumstances." Section 2 of the Criminal Code states that an offender is unfit to stand
trial when it is determined by the court that they are
... unable on account of mental disorder to conduct a defence at any stage of
proceedings before a verdict is rendered or to instruct counsel to do so, and, in
particular, unable on account of mental disorder to
(a) understand the nature or object of the proceedings,
(b) understand the possible consequences of the proceedings, or
(c) communicate with counsel.
Almost always, the fitness of an accused person to stand trial is assessed by a psychiatrist while the accused is either remanded in custody or at a hospital or psychiatric facility. Those found unfit to stand trial may be detained in a mental health
facility until deemed fit to stand trial by a body such as the Ontario Review Board.
Once the accused is found fit, the trial can resume. If a person never achieves a
state of fitness, the Crown may conclude that it is no longer prudent to continue the
criminal prosecution. In cases where the alleged offence is not serious, an accused
who is found to be unfit to stand trial may simply be diverted into the provincial/
territorial mental health system. The person may subsequently become fit to stand
trial at a later date.
Persons who are found fit to stand trial may still use the defence of not criminally
responsible on account of mental disorder ( CRMD; discussed below), although it has
been noted that the fact that an accused person is found to be mentally disordered at
the time the offence was committed does not necessarily absolve him or her from being
criminally responsible for the crime. 40
ASSIGNMENT AND PLEA
The arraignment of the accused takes place early in the process, if not at first appearance. The charges are read in open court, and the accused can enter a plea. The two
most common pleas are "guilty" and "not guilty." If a plea of guilty is entered, the case
goes directly to sentencing (see Chapter 9); a plea of not guilty results in the case being
bound over for trial. Technically, every accused person-even tl1ose who are "guilty
as sin" -can plead not guilty. Remember that in our adversarial system of justice, all
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Part Ill: The Criminal Courts
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accused persons are presumed innocent, and the onus is on the Crown to prove guilt.
Pleading not guilty, therefore, is not the same as claiming innocence.
Accused persons may plead not guilty because they are, in fact, innocent; because
they have a plausible defence and want to exercise their right to a trial; and/or because
their lawyer has advised them to do so. Although most cases end with a guilty plea,
they do not always begin that way. Accused persons often plead not guilty at the outset
of the process, in part to strengthen their position in any plea bargaining that may
take place. Accused who plead not guilty can change their plea to guilty at any point
before the verdict.
PLEA BARGAINING
Plea bargaining
An agreement whereby an accused
pleads guilty in exchange for the
promise of a benefit.
The majority of cases that come to the criminal court are resolved not in a trial in a
courtroom. In Ontario in 2014-15, for example, only 5.1 percent of all adult cases were
resolved with a trial. Jury trials are even more rare. 41 Rather, cases are resolved behindthe-scenes via plea bargaining (also referred to as plea negotiation) , which involves
discussions between the Crown prosecutor and the defence surrounding the charge(s)
facing the accused, discussions of procedure, discussions of the sentence, and discussions of the facts of the alleged offence, all of which are designed to expedite the trial
of the accused. 42
Plea bargaining is a fixture, and some would say indispensable component of the
criminal justice system, despite the fact that there is no mention of plea bargaining in
the Criminal Code and no federal, provincial, or territorial legislation or guidelines
exist to regulate this practice. As one lawyer has noted, "In our Canadian justice system
guilty pleas are the rule and trials the exception."43
These discussions may result in a plea agreement, whereby the accused gives up
the right to make the Crown prove the case at trial in exchange for the promise of
a benefit.
For example, the Crown can promise the possibility of a lower sentence by withdrawing some charges; by reducing a charge to a lesser but included offence (that is, an
offence that is similar but not as serious); by proceeding summarily rather than with an
indictment; by asking the judge that multiple prison sentences run concurrently rather
than consecutively; or by agreeing to a joint submission to the judge about sentencing.
ote that once a plea agreement has been agreed to by the Crown and defence, it can
only be repudiated in exceptional circumstances.
Historically, plea bargaining was felt not to have a role in the criminal justice
process, the Law Reform Commission stating in 1975 that it was "something for
which a decent criminal justice system has not place." 44 However, by 2016, the
court's sentiment had changed. In the case of R. V. Anthony-Cook (2016
43 ),
the SCC described plea agreements as "vitally important to the well-being of
our criminal justice system" and noted that without plea negotiations, the justice
system would "eventually collapse under its own weight." The reasons wh y plea
bargaining changed from pariah to accepted practice remain to be explored by
Canadian scholars.
Victims' rights legislation requires that crime victims be kept informed of the status
of their cases during the criminal justice process. However, only in the provinces of
Ontario (S.O. 1995, c. 6) and Manitoba (2015 ; C.C.S.M. c. V55) do victims have the
right to receive information about plea negotiations. Only in these jurisdictions is the
Crown required to consult with victims during the plea bargaining process. 45
sec
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CHAPTER 8: The Prosecution of Criminal Cases
215
AT ISSUE 8.1
SHOULD PLEA BARGAINING BE ABOLISHED
OR AT LEAST REGULATED?
Supporters of plea bargaining argue that it has the following important functions:
• Plea bargaining saves time and taxpayers' money by encouraging guilty pleas.
• It reduces the backlog of cases.
• It spares complainants the difficult task of testifying.
• It helps offenders take responsibility for their crimes by admitting guilt.
• It does not compromise the administration of justice.
• It provides an opportunity to get evidence against co-defendants or others that might not
otherwise be available to the police or Crown.
Detractors counter that plea bargaining has its downsides:
• Plea bargaining brings the administration of justice into disrepute.
• It does not follow any policy or guidelines and is therefore subject to abuse.
• It places pressure on innocent defendants to "cop a plea" to avoid being found guilty at trial and
receiving a more severe sentence.
• It places pressure on persons who committed the offence to plead guilty.
• It is a closed process that is not subject to public scrutiny and threatens the rights of accused
persons.
QUESTIONS
1. What arguments do you find most persuasive?
2. What is your view on the practice of plea bargaining?
Section 606 of the Criminal Code requires that presiding judges determine that a
guilty plea entered by an accused as a result of a plea agreement has been entered into
voluntarily and that the accused understands the nature and consequences of the plea.
The SCC has ruled (R. v. Nixon, 2011 SCC 34) that plea agreements between Crown
and defence are not binding. Once the Crown and the defence have agreed upon a
sentence, a joint submission is made to the presiding judge.
While judges are not legally bound to accept the recommendation contained in a
joint submission, the general principle is that judges will depart from the recommendation only in instances where it is contrary to the public interest to do so. 46 This has led
some observers to argue that it is the Crown prosecutors, rather than judges, who play a
primary role in determining sentences. 47
There are also concerns that plea bargaining can lead to wrongful convictions, particularly in cases where the accused is promised that the charges will be reduced and the
severity of the sentence will be lessened. 48 The issue of plea bargaining continues to be
a source of controversy in the criminal justice system . See At Issue 8.1.
ACCESS TO THE COURTROOM
A key concept in Canadian criminal justice is the open court principle, which holds
that, except in special circumstances, every stage of the court process must be open and
accessible to the public.
This principle has been established in various decisions of the SCC (e.g. A.G .
( ova Scotia) v. MacIntyre, [ 1982) 1 SCR 175 ). This principle has been described
216
Part Ill: The Criminal Courts
Open court principle
The principle that, with certain
exceptions, every stage of the court
process must be open and accessible
to the public.
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by Canadian courts as "one of the hallmarks of a democratic society" (CBC v. ew
Brunswick, [1996] 3 SCR 480). Public access to court proceedings is viewed as
essential to ensure the accountability of the judicial system (A.G. ( ova Scotia)
v. MacIntyre).
This means that, with certain exceptions, court proceedings, including the testimony
of witnesses, occur in courtrooms that are accessible to the general public. The decision
to close a courtroom to the public is taken only when it is determined by the judge to
be in the interest of public morals, the maintenance of order, or the proper administration of justice. The applicant for a closed courtroom-usually the prosecutor-must
prove that public exclusion is necessary. Judges may also issue publication bans. In trials
involving certain offences, including sexual offence involving children, the judge can
order that the identity of the complainant or of a witness and any information that could
disclose their identity not be published or broadcast.
In contrast to the U.S., however, the open court principle has not extended to cameras being allowed in the courtroom to record the proceedings. Efforts by the media to
record and broadcast court proceedings have generally been met with opposition from
all parties in the courtroom workgroup. 49
There have been exceptions to the general prohibition of cameras in the courtroom.
The SCC has allowed cameras to broadcast most of its proceedings since 1995, and
several provinces have, on occasion, allowed cameras to record proceedings in specific
cases. In 2016, an Alberta judge allowed cameras in the court for the verdict in the case
of Travis Vader. Vader had pied not guilty to two counts of first-degree murder in the
deaths of an elderly couple whose bodies were never found. 50 (Watch the verdict at
https://www.youtube.com/watch?v=FcokRPEjOuc. )
Ironically, the presiding judge erred in finding Vader guilty of second-degree murder,
using a section of the Criminal Code that had been found by the SCC in 1990 to be
unconstitutional. The judge's verdict was subsequently changed to manslaughter, and
Vader was sentenced to life in prison with no possibility of parole for seven yea rs.
MODE OF TRIAL: TRIAL BY JUDGE ALONE
OR BY JUDGE AND JURY
The key roles in criminal courts are played by the judge, the prosecutor or Crown
counsel, the defence counsel, the witnesses, and the jury. The "trier of fact" in a
criminal case-usually a judge-decides whether the guilt of the accused person has
been proved beyond a reasonable doubt. In a small number of cases, a jury of citizens
makes this decision.
The right for an accused to have a trial by jury is set out in section l l (f) of the
Charter of Rights and Freedoms, which states tl1at any person charged with an offence
has tl1e right "except in tl1e case of an offence under military law tried before a military
tribunal, to the benefit of trial by jury where the maximum punishment for the offence
is imprisonment for five yea rs or a more severe punishment."
Jury trials are virtually mandatory in some types of cases, an available option in many,
and prohibited in others. Ju ry trials are not available for summary conviction offences;
nor, with a handful of exceptions, are they available in youth court. In fact, tl1ere are key
differences in the prosecution of summary conviction offences and indictable offences.
See Figure 8.1.
Until the re-emergence of restorative justice approaches to criminal justice two
decades ago (see Chapter 13), the criminal jury was tl1e last vestige of significant
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CHAPTER 8: The Prosecution of Criminal Cases
217
community involvement in the administration of justice. Juries are involved in determining the guilt or innocence of accused persons, deciding parole eligibility for convicted offenders, and determining whether the eligibility for parole is reduced. Jury
trials are actually quite rare in the justice system, and most criminal matters are tried
by judge alone.
The responsibility for setting the qualifications for jurors falls under provincial jurisdiction. With the exception of Yukon, orthwestTerritories, and unavut, where juries
are composed of six persons, all juries in criminal cases have 12 jurors.
There are three important differences between trial by jury and trial by judge alone.
First, in jury trials, the jury decides on the true facts and determines the person's guilt;
in trials with a judge alone, the judge determines the law and the facts. Second, in a jury
trial, the judge makes a "charge to the jury," during which the judge instructs the jurors
about the law that applies to the case. And, third, judges give reasons for their decisions.
Lawyers use these reasons to help predict outcomes in future cases with similar facts.
Jurors don't give reasons with their verdict.
In cases involving trial by jury, the presiding judge must order a pre-hearing conference, which is attended by the Crown, the defence counsel, and the judge. They
can discuss any "matters to promote a fair and expeditious trial." In non-jury cases,
pre-trial conferences are optional. Informal "pre-trials" are becoming increasingly
routine. They take place in a judge's chambers and involve an off-the-record discussion of issues surrounding the case. These discussions provide an opportunity
for plea bargaining, since the presence of a judge can promote a fair resolution
between the two parties (which is preferable to eleventh-hour bargaining on the
courthouse steps).
The stages in a criminal trial by jury are set out in Figure 8.4.
T FIGURE 8.4
Stages in a Criminal Trial by Jury
Arraignment of the Accused 1----
Selection of the Jury
Motion for Dismissal Can Be Brought by Defence
• If judge agrees, directed verdict of not guilty is
entered by the judge.
• If judge disagrees, trial will continue.
Opening Statement
by the Defence
Verdict Returned
by the Jury
218
Part Ill: The Criminal Courts
Witnesses Examined by the Crown
• Direct examination by the Crown
• Cross-examination by the defence
Witnesses Examined by the Defence
• Direct examination by the defence
• Cross-examination by the Crown
Deliberation
by the Jury
Addressing of Jurors by the Judge,
Who Asks Them to Appoint a Foreperson
Judge Gives Charge
to the Jury
Crown Presents
Rebuttal
Opening Statement
by the Crown
Defence Presents
Subrebuttal
Closing Arguments by Counsel
• First by Crown, if defence did not
call witnesses
• First by defence if it did call witnesses
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DISCLOSURE OF EVIDENCE
A key component of the prosecution of criminal cases is the disclosure of evidence.
There are several SCC decisions that affect the disclosure of evidence in criminal trials.
The court's ruling in R. v. Stinchcombe ([ 1991] 3 SCR 326) requires that the Crown
give the defence lawyer access to all evidence that might be presented by the prosecution in a trial, especially any potentially exculpatory evidence (evidence that might indicate the accused did not commit the crime). As noted in Chapter 6, this requirement
has placed significant resource demands on the police and has been a contributor to the
delays encountered in preparing cases for trial.
The decision in R. v. Mc eil (2009 SCC 3) places a duty on the Crown to disclosure any records of misconduct by the investigating police officers in the case. In R. v.
O'Connor (1995 4 SCR 411 ), the SCC held that a defendant who had been charged
with sexual assault did not have an automatic right to the medical and therapy records
of his accusers. The ruling in this case prompted the federal government to enact legislation that sets out a procedure for disclosure of personal records, including medical
records, in all sexual offence cases. This includes the requirement that the court take
into account the privacy and equality rights of women.
This process is called disclosure of evidence or discovery and includes, among other
materials, the names and addresses of persons the Crown intends to call as witnesses,
the results of any examinations or tests on the accused , materials from wiretaps and
surveillance, and the names of expert wib1esses that the Crown intends to call.
The failure to disclose evidence can trigger a Charter remedy because it impairs
an accused person's right to make full answer and defence to the charges. However,
the disclosure requirement does not work in reverse: the defence is not obliged to
disclose material to the prosecution. Recall from the discussion in Chapter 4 that the
requirements of disclosure have placed an added resource burden on police services
who may spend as much time preparing documents related to the investigation as in
the investigation itself.
THE TRIAL
Stay of proceedings
A trial takes place if the accused person who pleads not guilty does not change that plea
and the Crown does not withdraw the charges or terminate the matter with a stay of
proceedings. Especially in provinces or territories where the police have sole responsibility for laying charges, a Crown attorney may review cases early in the process and
screen out those that might not succeed, as well as those for which there is insufficient
evidence to secure a conviction. Because of this practice of case screen ing,
and guilty pleas on the part of accused persons, most cases do not go to trial.
Trials are actually quite rare, occurring in only about 10 percent of criminal cases. 51 The majority of cases are resolved via plea bargaining or by the
Crown counsel staying the proceedings or withdrawing the charges.
The accused person is generally present throughout the proceedings, and
may testify but is not required to do so. To avoid media scrutiny, a "famous
person" being charged may be represented by counsel, negotiate a guilty plea
through a plea bargain, and/or not appear at all.
Figure 8.5 illustrates the traditional common law court setting, in this
(f,.~
instance the Ontario Court of Justice. There are slight variations in the layout
of different courts. To take a virtual tour of several provincial courts in Alberta,
"Your.._, the -•nc• of this Hne of ~ n g will
become apparent In• moment.•
visit http://www.albertacourts .ab.ca.
An act by the Crown to terminate or
suspend court proceedings after they
have commenced.
.,
i
3
t.>
~
g
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CHAPTER 8: The Prosecution of Criminal Cases
219
• FIGURE 8.5
A Criminal Court Setting
THE CASE FOR THE CROWN
It is the task of the Crown to prove the guilt of an accused person beyond a reasonable
doubt; if the Crown fails to do this, there can be no conviction. The trial begins with the
prosecution call ing witnesses and presenting evidence in support of the position that
the accused is gu ilty. For interpersonal offences, the testimony of the complainant may
well be the Crown's key evidence. At the very least, the Crown attorney must produce
evidence covering all the major elements of the offence.
For example, in a murder case, the Crown must show that someone died and that the
death was culpable homicide (that is, not an accident or death by natural causes). There
should be evidence linking the accused to that death (e.g., eyewitnesses, fingerprints,
• Crown prosecutors arrive at court.
220
Part Ill: The Criminal Courts
NEL
DNA evidence, or circumstantial evidence, such as a strong motive on the part ot tne
accused). Expert witnesses may be called to interpret evidence or to present findings
from the police investigation .
At trial, there is direct evidence and circumstantial evidence, best distinguished by the
following analogy:
Imagine we wake up in the morning and when we peek out of the window to look
at the weather for the day (this example is obviously pre-smartphones) we notice the
road, the sidewalk, and the ground is wet and rain is falling from the sky. We accept,
therefore, that it is raining, and if we have been in Calgary all summer, we might
even say "it is raining again."
Returning to our example, if we look out of our window and we see the road is wet
but the sky is clear, we cannot directly aver to what the weather was like before we
woke. We can, however, draw a "rational" or "reasonable" inference from the state of
wetness and say, "it was raining sometime before" but we did not observe that happen.
We are not "direct" witnesses to this assumed event. In fact, we could be very wrong
about our inference. For instance, if the road is wet but tl1e sidewalk and ground is not,
then we cannot safely assume it rained. A more "rational" or "reasonable" explanation
may be that the City of Calgary street cleaners came by and washed tl1e road. 52
The first scenario is an example of direct evidence, as it is based on direct observation.
The second is an example of circumstantial evidence in that it is not directly observed,
but requires inferences to be drawn from the facts.
In tl1e past, for circumstantial evidence to be admitted in court, judges required tl,e
prosecution to disprove all of the other possibilities. That changed in the SCC decision
in R. v. Villaroman (20 16 SCC 33). Images of child pornography had been found on
the defendant's computer by a shop repai rperson . The accused was convicted at trial
based on tl1e circumstantial evidence tl1at he owned the computer and his was tl,e only
user name. The Alberta Court of Appeal overturned tl,e conviction, ruling tl1at tl1e trial
judge erred in not considering other ways tl,at tl,e images could have found their way
onto tl,e computer. However, tl,e SCC reinstated the conviction, ruling that Crown
does not have to disprove other possible explanations.
There is also hearsay evidence, which is, "Evidence tliat is offered by a witness of
which tl1ey do not have direct knowledge but, ratlier, tl,eir testimony is based on what
others have said to them" (http://www.duhaime.org/LegalDictionary/H/Hearsay.aspx).
Hearsay evidence, also commonly referred to as "second-hand evidence," "rumour," or
"gossip," is rarely admissible in court. The SCC has noted that a major problem wit!,
hearsay evidence is tl,at "it has not been subjected to tl,e trial by fire of cross-examination"
(R. v. Abbey, (1982) 2 SCR 24). In a more recent case, tl1e SCC reaffirmed the "high
bar" for admitting hearsay evidence (R. v. Bradshaw, 2017 SCC 35).
There is no guarantee that evidence presented to tl,e court will be admitted. The
authority for courts to exclude evidence is contained in section 24(2) of tl,e Charter of
Rights and Freedoms. Evidence can be excluded iftl,e accused's Charter rights were violated, including an illegal search by tl,e police, or if admitting the evidence would bring
tl,e administration of justice into disrepute. In tl,e case of R. v. eyazi (20 14 0 SC
6838), an Ontario Superior Court Justice excluded drugs tliat were found during an
illegal search after determining the search was based on racial profiling by the police.
THE CASE FOR THE DEFENCE
At tl,e close of the Crown's case, the defence may enter eitlier an insufficient-evidence
motion or a no-evidence motion, suggesting to the judge tl,at the state has not made
its case and that there is no point to continuing tl,e trial. If tl,e judge agrees, tlie case
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CHAPTER 8: The Prosecution of Criminal Cases
221
• A defence lawyer enters the courtroom.
is dismissed . If not, the defence presents its case. The defence attorney can crossexamine Crown witnesses and challenge the admissibility of Crown evidence.
Generally, the sexual history of the victim is inadmissible as evidence in court when
defendants want to show that the complainant was "more likely to have consented"
to the alleged offence or "is less worthy of belief." The restriction is not absolute, and
defendants can argue that the information is necessary for their defence.
As part of the case for the defence, the accused person may testify (give evidence) on
his or her own behalf, but is not obliged to do so. For accused persons who testify in
court, there are advantages and disadva ntages. On the one hand, testifying gives defendants an opportunity to present their side of the story and establish credibility.
On the other hand, a defendant who testifies opens the door to cross-examination by
the Crown prosecutor, who will attempt to point out weaknesses and inconsistencies
in the testimony. In addition, if the defendant presents good character or reputation as
a reason why he or she could not have committed the offence, the prosecution is free
to enter into evidence any previous convictions. Otherwise, the jury or judge cannot
learn if the accused has a prior criminal record (at least until the sentencing phase, if
the defendant is found guilty).
An accused acting as his or her own counsel is not usually permitted to crossexamine a witness under the age of 14 in cases involving sexual offences or violent
crimes. The court will appoint a lawyer to undertake that task. The judge has discretion
and can permit an unrepresented defendant to conduct the cross-examination if the
proper administration of justice requires it.
The more common defences that are used in the criminal court process can be
generally grouped into (1) "You've got the wrong person"; (2) the mental state of the
accused at the time the alleged offence occurred; (3) justifications (or excuses) for
having committed a criminal act; and (4) procedural defences.
THE "YOU'VE GOT THE WRONG PERSON" DEFENCE
This defence strategy centres on one of two possibilities: that the police arrested
the wrong person, or that the complainant fabricated the allegation, thus no crime
222
Part Ill: The Criminal Courts
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was committed. To support a claim of false acc usation, the defence may present evidence verifying the defendant's alibi. One example of a verified alibi is establish ing
that the defendant was in jail when the offence was committed.
THE MENTAL STATE OF THE ACCUSED AT THE TIME
OF THE ALLEGED OFFENCE
The three most common defences that are centred on the mental state of the
accused at the time of the alleged offence are (1) mental disorder (no t criminally
responsible on account of mental disorder, or CRMD); (2) intoxication; and (3)
automatism.
NOT CRIMINALLY RESPONSIBLE ON ACCOUNT
OF MENTAL DISORDER (NCRMD)
Not criminally responsible on
account of mental disorder
A defence that relieves the accused
person of criminal responsibility due to a
mental disorder.
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Accused persons who are found fit to stand trial may use the defence of not criminally
responsible on account of mental disorder ( CRMD). This is contained in section 16
of the Criminal Code which states, " o person is criminally responsible for an act
committed, or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong."
An assessment ordered by the court is used to determine this verdict, which is not
a finding of guilt or a conviction for the offence. The accused person is determined
not to have been responsible for his or her behaviour at the time the offence was committed. This may include cases in which the accused is suffering from fetal alcohol
spectrum disorder (FASD), a condition of bra in damage caused by a person's birthmo ther drinking during pregnancy. In approximately l percent of the cases heard in
adult criminal courts, the accused is found C RMD. 53
The court has a number of options for persons determined to be CRMD: detention
in a hospital, a conditional discharge, or an absolute clischarge. 54 Legal observers have
cautioned that C RMD is not a true defence, as a verdict of C RMD is not that the
accused didn't commit the offence, but that the defendant is not crim inally responsible
for the act clue to their mental state at the time. 55
Persons who are found CRMD are subjected to annual reviews by provincial
review boards and may qualify for escorted and unescorted passes into the community.
Historically, the victim's families were not notified of decisions made by the review
boards. Research has found that there is considerable variabil ity between the provinces
in the number of accused persons found C RMD, which suggests that there may be
significant differences between jurisdictions in how the law is being applied. 56 The
data revea l variations over time within provinces as well. In Quebec, for example, the
number of MC RMD findings has increased over the years from 1992 ( = 177) to
2005 ( =407) to20ll-12 ( = 540). 57
As pa rt of its "get tough on crime" approach, the federa l Conservative government
(2006-15 ) enacted the ot Criminally Responsible Reform Act (S.C . 2014, c. 6).
The intent of the legislation was to place public safety as the primary consideration
in managing persons found CRMD. Those offenders determined to be at risk
of committing violent offences in the future would be required to have this status
revoked by a court, prior to being released by a review board. Persons designed as
"high risk" are not allowed to have unescorted visi ts out into the commu nity, and
victims are provided with information on when the offender is being discharged
and where the offender lives. 58 This legislation was designed to address what was
CHAPTER 8: The Prosecution of Criminal Cases
223
perceived to be a review process that was too leni ent on offenders who had been
found NCRMD .
Critics argue that the legislation is an illustration of the politicization of the criminal justice process and runs counter to the research on persons who are designated
CRMD. 59 There is no evidence that this approach will increase public safety. Rather,
it is argued, the legislation furth er stigmatizes mentally ill offenders, particularly those
who are designated as "high risk." 60
Research on persons found N CRMD in British Columbia, Ontario, and Quebec
= 1,800) found that this is a heterogenous group with respect to their m ental
health issues and involvem ent in crime and that only a small percentage of this
group had committed serious violent offences. 6 1 Th e ove rall recidivism rates of this
group after three years was 17 percent, which is lowe r than other groups of offenders
(see Chapter 12), and those persons who had committed severe viol ent crim es we re
less likely to recidivate. 62
C ases in which an accused was found CRMD are often high profile and surrounded by controversy. The case of Vincent Li, who was referred in some quarters as
the "poster boy" for the reform of CRMD is one example. 63 See Court File 8.2.
COURT FILE 8.2
A DEATH ON THE GREYHOUND: A CASE OF NOT CRIMINALLY RESPONSIBLE DUE
TO MENTAL DEFICIENCY
On July 30, 2008, Vincent Li, a passenger on a Greyhound bus
travelling through Manitoba, attacked a fellow passenger, Tim McLean,
stabbing him to death, decapitating him, and cannibalizing part of the
victim's body.
Li was arrested at the scene and charged with second-degree
murder. He pied not guilty. Defence counsel argued that Li was
not criminally responsible for his actions due to mental illness. At
trial, evidence was presented by a forensic psychiatrist that Li was
schizophrenic and suffered a major psychotic episode that led to the
killing. Li had told the psychiatrist that God had told him that the victim
was a "force of evil" who was about to stab Li unless he took action
to protect himself. Testimony from the psychiatrist was that Li was not
capable of understanding that his actions were wrong.
Both Crown and defence argued that Li was not criminally
responsible due to his mental illness and the presiding judge agreed. In
2009, Li was sent to a provincial psychiatric facility and placed under
the authority of the Manitoba Criminal Code Review Board, which has
the authority to determine how long he would remain in the facility.
The case stirred considerable controversy when, in 2013, the
review board accepted the recommendation from Li's mental health
treatment team that he be allowed to have supervised excursions into
Winnipeg and surrounding areas.aIn 2016, Li began living on his own
in an apartment in Winnipeg , while being supervised to ensure he took
his medication and attended counselling.
In 2017, the review board gave Li (who had changed his name to
Will Lee Baker) an absolute discharge, stating that he did not pose a
threat to community safety. The board's decision was based on testimony
from mental health professionals that he had been a model patient
224
Part Ill: The Criminal Courts
The Greyhound bus on which Vincent Li attacked Tim McLean
and that the "weight of evidence" indicated that he was not a risk.b The
board also cited a 1999 SCC ruling that required it to grant an absolute
discharge if the person did not pose a risk to community safety.c
The decision was heavily criticized by the victim 's family, politicians, and a forensic psychologist who stated that Baker's absolute
discharge was not in the public interest.d
• J. Turner. 2013, May 17. "Greyhound Bus Killer Vince Li Gets Freedom to Travel
to Winnipeg, Beaches," Winnipeg Sun. http://www.winnipegsun.com/2013/05/17/
greyhound-bus-killer-vince-li-gets-freedom-to-travel-to-winnipeg-beaches.
b CBC News. 2017, February 10. "Vince Li, Who Beheaded Passenger on Greyhound
Bus, Given Absolute Discharge." http://www.cbc.ca/news/canada/manitoba/vince
-li-discharge-1 .3977278.
c Winko
v. British Columbia (Forensic Psychiatric Institute), [1999] 2 SCR 625.
d CBC News, "Vince Li, Who Beheaded Passenger on Greyhound Bus, Given Absolute
Discharge. "
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INTOXICATION
Some of the most controversial defences centre on the argument that accused persons
are not criminally liable because they could not have formed mens rea . This mental
state could have been temporary and situational or the result of a long-term mental
disorder. In order to convict in most cases, the judge or jury must believe that the action
under scrutiny-the actus reus-was a voluntary exercise of the person's will. In a 1994
decision, the Supreme Court of Canada found a man not guilty of raping a woman
because he had been so intoxicated that his actions were not voluntary (R. v. Daviault,
[1994] 3 SCR 63).
This decision triggered a public outcry, and the federal government responded by
amending the Criminal Code to specify that self-induced intoxication cannot be used
to excuse certain types of interpersonal offences, including assault and sexual assault,
ruling in R. V. Tatton (20 15
even if mens rea is absent. This was reaffirmed in the
SCC 33), wherein the court ruled that intoxication cannot be used as a defence unless
the accused was drunk to the point of automatism.
sec
AUTOMATISM
In what is considered the landmark ruling on the defence of automatism in R. v.
Stone ([ 1999] 2 SCR 290), a justice of the SCC defined automatism as "a state
of impaired consciousness ... in which an individual, though capable of action,
has no voluntary control over that action." In one case, a Toronto-area man drove
across town , fatally stabbed his moth er-in-law, and promptly turned himself in to
the police, confessing repeatedly to the crime. Despite overwhelming evidence that
he had killed the woman, he was acquitted at trial. The jury accepted the defence
evidence tl1at the man had been sleepwalking and therefore could not have formed
the requisite mens rea. The defence of automatism does not always result in an outright acquittal.
JUSTIFICATIONS: EXCUSE-BASED DEFENCES
The second set of defence strategies can be categorized as excuse-based defences.
These are set out in Figure 8.6.
Provocation
Compulsion/Duress
Defence of a Dwelling
Justifications
Used as a
Defence by
the Accused
Consent
FIGURE 8.6 •
Justifications Used as a Defence
by the Accused
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Battered Woman Syndrome
Necessity
CHAPTER 8: The Prosecution of Criminal Cases
225
A full discussion of each of these defences could consume an entire text,64 so here
only a limited comment is made. For a SCC case involving excuse-based defences, see
R. v. Ryan (2013 SCC 3).
PROVOCATION
The defence of provocation is often associated with claims of self-defence. Persons
charged with murder can claim provocation to justify a reduction to the charge of manslaughter (here, provocation is a partial defence). In recent years, the courts have heard
a number of these cases and the decisions seem to tum on the specific events. Critics
claim that the
has placed restrictions on the right of accused to use provocation
sec
as a defence.
In R. v. Caimey (2013 SCC 55 ), the
rejected Mr. Caimey's defence that
he was provoked into killing Stephen Ferguson who was extremely abusive towards
Mr. Cairney's cousin over a long period of time. On one occasion, Mr. Cairney
had witnessed Mr. Ferguson kneel on his cousin's throat and threaten to kill her.
Mr. Caimey argued at trial that knowing and witnessing the abuse for over a decade
had caused him to lose control and shoot Mr. Ferguson.
sec
CONSENT
The issue of consent is a contentious issue in the criminal justice system and has been
at the centre of a number of high-profile cases. The defence of consent is based on the
argument that the complainant voluntarily agreed to engage in the activity in question.
A common example: Two individuals can consent to a fistfight if both parties appreciate
the risks and neither is seriously injured. However, if one of the pugilists escalates the
altercation into an assault and the other party is seriously injured or killed, then consent
is not generally available as a defence.
Similarly, a hockey player has consented to some level of violence and perhaps
physical injury upon stepping on the ice. However, this consent does not extend to
intentional acts of violence, such as being chopped across the face with the blade of a
hockey stick.
However, lack of resistance to an assault or sexual assault does not constitute consent
if the submission of the complainant was achieved by force, threats, fraud , or the exercise of authority. An example of this last is where there is a clear power imbalance, as in
the case of teacher-student, doctor-patient, or parent-child relationships.
Consent can be real, or it can be apprehended if the accused mistakenly believed
that a non-consenting complainant consented. In the past, some accused persons were
able to argue successfully that they honestly believed the complainant was consenting
to sexual activity-that "no meant yes." Parliament has responded by restricting the use
of consent as a defence for sexual offences. Since 1988, for example, consent has not
been available as a defence if the complainant was under the age of 14 at the time of
the offence.
In 1992, the "no means no" law (amendments to the Criminal Code ) was enacted.
If a sexual assault complainant expresses "by words or conduct, a lack of agreement to
engage in the activity," consent to the activity is deemed not to have been obtained.
either can consent be used as a defence if "the complainant, having consented to
the sexual activity, expresses, by words or conduct, a lack of agreement to continue to
engage in the activity." Also, consent cannot be voluntarily given by someone who is
induced to engage in the activity with a person who is abusing a position of trust, power,
or authority. Nor is apprehended consent a defence to a sexual assault if the accused
person's belief in consent arose from self-induced intoxication or reckless or willful
226
Part Ill: The Criminal Courts
NEL
disregard, or if the accused did not take "reasonable steps" to ascertain whether the
complainant was in fact consenting.
The challenges surrounding the issue of consent are often most prominent in cases
of alleged sexual assault. Observers have noted that there is often a disconnect between
the law on sexual consent and "accepted behaviour" social norms surrounding consent
in sexual relations. 65 In the case of R. v. Ewanchuk ([ 1999] l SCR 3 30), the SCC held
that there was no defence of "implied consent" to sexual assault.
There have been a number of high-profile cases involving allegations of sexual assault
that have sent protestors to the streets. These cases are surrounded by controversy. They
illustrate the issues and controversy that often surround consent in sexual assault cases.
In one case in 2017, a judge in ova Scotia found a taxicab driver not guilty of
sexual assault. The driver had been arrested and charged after a woman was found
by a police officer in the backseat of his taxi , naked from the chest down, severely
intoxicated, and unconscious. The driver was found with his pants down, holding her
underwear. In stating the reasons for the judgment, the judge stated that the woman
may have consented to a sexual encounter prior to passing out, noting, "Clearly, a
drunk can consent."66
The Crown appealed the decision, and the ova Scotia Court of Appeal was scheduled to hear the case in November 2017. Criminal law experts disagreed on the ruling.
Speaking in support of the finding, one criminal lawyer stated, "The principles the
judge relies on are legally correct; they're just not popular." Others disagreed, with a law
professor arguing that the judge himself had indicated, "there was significant circumstantial evidence of the complainant's lack of capacity."67
Another case that generated considerable controversy was the 2016 sexual assault
trial ofJian Ghomeshi, a high-profile Canadian radio host. This case is the subject of a
Class/Group Discussion Exercise at the end of this chapter.
The uncertainty and controversy surrounding the issue of consent prompted the federal government in 201 7 to pass Bill C-51 , which, among other provisions, amends the
Criminal Code to state that an unconscious person is incapable of giving consent and
expands the "rape shield" provisions of the Criminal Code to include communications
of a sexual nature or for a sexual purpose.
5!
~
.c
8"'
C:
~
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a:
• Participants in a protest against the
0..
z
s0
decision of Judge Gregory Lenehan's decision
in the sexual assault case involving a Halifax
taxicab driver, March 2017.
NEL
<
5w
i::
CHAPTER 8: The Prosecution of Criminal Cases
227
BATTERED WOMAN SYNDROME
Experienced by women who have suffered chronic and severe abuse, battered woman
syndrome (BWS) is a condition characterized by feelings of social isolation, worthlessness, anxiety, depression, and low self-esteem. In the landmark case R. v. Lavallee
([ 1990] 1 SCR 852), the Supreme Court of Canada accepted BWS as a defence, and it
has since been used successfully in subsequent cases. 68 ,69
In R. v. Malott ([ 1998] 1 SCR 123 ), the Supreme Court of Canada stated, "'Battered
woman syndrome' is not a legal defence in itself, but rather is a psychiatric explanation
of the mental state of an abused woman which can be relevant to understanding a battered woman's state of mind." In R. v. Ryan (20 13 SCC 3), however, the SCC placed
limits on the extent to which a woman who was in an abusive relationship could use
the defence of duress. The woman had attempted to hire a hit man (who was, in fact,
an RCMP undercover officer) to kill her abusive husband. 70.7l
PROCEDURAL DEFENCES
This category of defence strategies focuses not on the guilt or innocence of the accused,
but rather on the conduct of the police or prosecution, or perhaps the validity of the law
itself. In common parlance, this is known as "getting off on a technicality." The judge
can rule on most of these issues before the trial even starts, but Charter arguments can
sidetrack a trial until the issue is resolved.
Procedural defences fall roughly into four categories:
• Challenging the validity of the applicable law. Some successful procedural defences
have attacked the constitutionality of the law used to charge the accused.
• Challenging the validity of the prosecution. Another strategy is to claim that the
police or prosecutors acted unfairl y in the investigation or charging of the accused.
Entrapment and abuse of process (discussed in Chapter 3) are two examples of unfair
conduct.
• Contesting the admissibility ofevidence gathered by the police. If key evidence is excluded,
not enough evidence may remain to prove guilt beyond a reasonable doubt. As noted in
Chapter 5, a confession gained after an unlawful arrest may be ruled inadmissible if its
use would bring the system of justice into disrepute.
• Seeking a remedy for violation of a Charter right. In extreme circumstances, the violation
of an accused person's Charter rights can be remedied by the termination of the prosecution. There have been cases in which the Charter right to trial within a reasonable time
was violated and a stay of proceedings was ordered by the presiding judge.
THEJURY
Juries are finders of fact while the role of the judge is to interpret the law, determine
the admissibility of evidence, and instruct the jurors. It is the jury that will determine
the gui lt or innocence of the accused person. Jury decisions must be unanimous .
If the jury returns a verdict of guilty, then it is the responsibility of the judge to impose
the sentence.
Unlike their American counterparts, Canadian jurors are prohibited from discussing
their deliberations with the media . Each province/territory has legislation that sets out
the qualifications for jurors and that provides other directives for selecting juries and
guiding their activities. Jury duty is still regarded as a civic duty; with a few exceptions,
a person called for jury duty will be required to serve.
228
Part Ill: The Criminal Courts
NEL
• A criminal jury with the defendant
in the foreground
The three essential attributes of a criminal jury are ( 1) impartiality, (2) competence,
and (3) representativeness (R. v. Bain, (1992] 1 SCR 91). The SCC has assigned to
Crown counsel the role of ensuring that the jury meets these requirements and stated
that "the Crown Attorney should use the means at his or her disposal to exclude prospective jurors that could be biased in favour of the prosecution, even if the defence is
not aware of this fact" (R. v. Bain, [ 1992] 1 SCR 91 ).
There have been concerns that juries do not reflect the diversity of the community,
in particular, the lack of Indigenous representation on juries hearing cases involving
Indigenous accused. In 2011, a judge in Thunder Bay, Ontario, postponed a murder
trial because the jury pool did not include Indigenous persons. 72
A subsequent inquiry, conducted for the province by a retired SCC judge, found
that the criminal justice system as applied to Indigenous persons in the province, and
particularly in the northern regions of the province, was in crisis and that the status quo
was not sustainable.7 3 The lack of representation of Indigenous persons on jury rolls
was symptomatic of a larger problem of Indigenous distrust of and lack of knowledge
about the criminal justice system and, more specifically, juries.
In 2013, Clifford Kokopenace's manslaughter conviction was overturned by the
Ontario Court of Appeal on the basis that his rights were violated by the provincial government, which failed to ensure there was proper representation of Indigenous persons
on jury rolls, even though the problem had been widely documented .74 The appeal
court upheld Kokopenace's conviction for the stabbing death of his friend on the Grassy
arrows reserve as "reasonable," but sent the case back for a new trial. The conviction
was subsequently re-instated by the
in a 5-2 decision (R. V. Kokopenace, 2015
SCC 28). The court held tl1at "reasonable efforts" had been made by the community to
ensure that the jury had adequate Indigenous representation. 75
Since jury deliberations are "secret," research on jury deliberations and decision-making is based on '!mock" (pretend) juries, as no recording devices or observers
are allowed into jury rooms. In contrast to the U.S., it is not permissible to interview
jurors about the deliberations when the case is concluded.
sec
NEL
CHAPTER 8: The Prosecution of Criminal Cases
229
It does not appear that personal characteristics of jurors play a significant role in
decision-making, and non-evidentiary factors tend to play a role when the evidence
presented to the jury is not clearly in favour of the prosecution or defence. 76 Individual
jurors do participate eifferentially in deliberations, and jurors also appear to experience
considerable pressure to reach a unanimous verdict and there is an effort to avoid a
"hung jury," a situation in which consensus cannot be reached on the guilt or innocence of an accused .
Among the concerns that surround the use of juries is that jurors may not understand evidence that is presented at trial due to its complexity or the manner in which
it is presented by the defence and prosecutor. 77 It has also been suggested that there
may be a "CSI effect" (from the popular television show, Crime Scene Investigation ),
wherein jurors expect that there will be clear and unequivocal scientific evidence
presented by the prosecutor that can support a conviction. Research, however, has
failed to support the CSI effect, although jurors appear to have high expectations that
prosecutors will present scientific evidence in support of an argument that the accused
person is guilty. 78
One area that is of concern is the instructions that are given to jurors following the
trial and prior to deliberations . These instructions generally relate to the charges facing
the defendant and the standard of proof that the jurors must use in weighing the evidence that has been presented at trial. From 30 to 50 percent of jury instructions that
are reviewed on appeal result in orders for new trials due to errors made by the judge
in giving instructions to the jury. Jury instructions are not mentioned in the Criminal
Code, and this has resulted in considerable disparity in how this most-important component of the judicial process is managed by judges.
In rare cases, juries have engaged in nullification, failing to convict an obviously
guilty accused because the laws do not represent the will of the community. This has
occurred in marijuana cases and in a series of jury decisions relating to abortion (R. v.
Krieger, 2006 SCC 47; R. v. Morgentaler, [1988] 1 SCR 30).
Another concern that has only recently emerged is the presence of post-traumatic
stress disorder (PTSD) among persons who have served on juries .79 It often occurs as a
result of jurors being exposed to graphic crime scene photos, evidence, and testimony.
Provincial and territorial governments are beginning to address the issue and, in some
jurisdictions, have made assistance available for former jurors who request it.
APPEALS
There is the possibility of appeal once a case has been concluded in court. ot every
case can be appealed; in fact, in the majority of cases an appeal is not fil ed. The
right to appeal exists only in certain situations; in others, the Court of Appeal can
grant leave (permission ) to appeal. Unlike in the U.S. where only the defence can
appeal, in Canada either the Crown prosecutor or th e defence lawyer can file an
appeal. A distinction is made between grounds for appeal which involve questions
of law, and those which involve questions of fact, and those which involve both .
ote also that there are different appeal procedures for summary conviction and
indictable offences.
Once an appeal has been launched, the incarcerated appellant may be released on
bail until tl1e appeal is heard. The judge who hears this request considers, among other
things, the prima facie merits of the appeal itself; this is to ensure that frivolous appeals
cannot routinely be used to defer the serving of a prison sentence.
230
Part Ill: The Criminal Courts
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An appeal may be directed at the verdict, or the sentence, or both. However, mosr
appeals are directed at the sentence: The incarcerated appellant thinks it is too severe, or
the prosecutor thinks it is too lenient. The appellate court assesses the sentence against
the prevailing norms found in reported case law. In deciding the case, the court may
raise the sentence, or lower it, or refuse to interfere with what the trial judge ordered.
An appeal of the verdict usually requires some demonstration that a legal error was
made at the trial or that new, exculpatory evidence has been discovered. In contrast,
defendants can appeal any facet of the case that renders the verdict unreasonable.
There are five possible outcomes of verdict appeals. The appeal court can (I ) decide
not to hear the appeal; (2) hear the appeal and dismiss it; (3) substitute a conviction on
a lesser but included offence (and probably reduce the sentence); (4) direct that the
offender be acquitted; or (5) order a new trial. Most appeals originate from the defence
side. However, in Canada it is also possible for a Crown attorney to appeal the acquittal
of an accused.
CRIME VICTIMS AND THE COURT PROCESS
Criminal courts have often not adequately considered the needs of crime victims
during the court process. It generally falls to the police to protect victims and ensure
their appearance in court to provide testimony. The Canadian Victims Bill of Rights
(S.C. 2015, c. 13, s. 2) entrenched a role for crime victims in the court process.
At trial, victims may be called upon to testify. They are summoned to court (by
subpoena) and are paid a small fee just like any other witness. Testifying in a public
courtroom, in the presence of the alleged perpetrator, is an emotionally arduous task
for victims. The Criminal Code contains concessions to crime victims who testify in
court; most of these, however, are offered at the discretion of the trial judge. These
provisions (see below) were developed in response to concerns that the victims of
sexual offences were often victimized a second time by the experience of testimony and
cross-examination. A concern is that the victim may be re-victimized by the criminal
court proceedings.
Women victims often feel that it is they who are on trial, rather than the accused,
one survivor of sexual violence stating, " ... the woman is guilty, she's just got to prove
that she's innocent-she didn't commit the crime. So, it's reversed. It's backwards, this
so-called justice system." 80
Commenting on the sentence that her perpetrator received, one woman survivor of
sexual violence stated,
Like for me, I have a lifetime sentence. Like this will never leave me, it will always
be there. We can only manage to, hope to get through our lives and have a happy
and fulfilling life. But I'm forty and I'm still not there yet. So why do these people
get no time, or just a little bit of time, when they could steal some money and it's
considered more of a crime. Like what makes us so invaluable that we don't deserve
justice ... 81
The need for training for criminal justice system personnel , including the police and
judges, was also identified as being required to ensure that the needs of the victims are
addressed. One survivor of sexual violence stated, " ... I think they really, truly need to
understand there needs to be better education on the side oflaw enforcement, or on the
judicial side, as to why it is so under-reported; why people feel such a sense of shame;
why victims will blame themselves or feel responsible [ ... ] why people tend to get away
with this and why people are reluctant to come forward ... "82
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CHAPTER 8: The Prosecution of Criminal Cases
231
vUMPENSATION FOR CRIME VICTIMS
There are a number of ways in which crime victims can seek financial redress for
the harm caused by the victimization, including compensation for property offences
by restitution paid by the offender upon an order by the court and through private
insurance. Victims of personal injury offences can apply for financial compensation
from the provincial government to cover expenses and damages directly related to
the crime.
Criminal injury compensation programs operate in all provinces except ew-
Restitution
A court-ordered payment that the
offender makes to the victim to
compensate for loss of or damage
to property.
foundland and Labrador but not in the territories. Given the high rates of crime and
victimization in these jurisdictions, this is of concern. Victims may be compensated
for out-of-pocket expenses such as lost wages and, in some jurisdictions, for "pain and
suffering" caused by the offence. This compensation is available even in cases where
the charges against the alleged offender have been stayed or withdrawn. In contrast to
criminal courts where guilt must be proved beyond a reasonable doubt, the standard
used by compensation boards is "balance of probabilities," a far lower threshold .
One woman, a survivor of a sexual assault, reflected on her experience of taking her
claim to the Ontario Criminal Injuries Compensation Board:
Criminal injury
compensation
Financial remuneration paid to crime
victims.
Was it worth it? o, and yes. On one hand, the emotional torhtre of having to testify
was not worth the small sum of money I got, and could never undo what had been
already been done to me. On the other, hearing the "alleged offender" blatantly
commit a lie to public record, and have him hear from a legal authority that yes, he
indeed victimized me were two of my favourite moments of 2016. For someone who
had just been denied justice through criminal court, it was satisfying to have a legal
body rule in my favour. 83
ACCOMMODATING DIVERSITY IN THE COURTROOM
Canadian courts have often struggled to accommodate accused persons who do not
speak eitl1er French or English. In 2015, a Vancouver Island man accused of drug
trafficking was set free by a provincial court judge because tl1e province had failed, over
two yea rs of proceedings, to provide a Cambodian interpreter.
An issue tl1at illustrates the challenges tl1at the criminal justice system faces in
accommodating diversity is whetl1er a victim who is a Muslim and wears the niqab (a
full face veil revealing only the eyes) should be permitted to testify against the person
who allegedly committed an offence against her. See At Issue 8.2.
WRONGFUL CONVICTIONS
The criminal justice system operates within a legal and procedural framework that is
designed to ensure that the rights of those accused of criminal offences are protected
and that their guilt must be proved "beyond a reasonable doubt." In several cases,
the SCC has reiterated that one of the primary goals of the criminal justice system
is to ensure that innocent persons are not wrongfully convicted (e.g., R. v. Trochym,
2007 sec 6).
Despite tl1is, innocent persons are found guilty and, in some instances, are sent
to prison for crimes they did not commit. Or, a person pied guilty when legitimate
defences were available. Indigenous women who are charged with murder, for example,
frequentl y plead guilty although they may have been able to use self-defence as a justification for the act. 84 As witl1 plea bargaining and bail, persons who are marginal and of
232
Part Ill: The Criminal Courts
NEL
AT ISSUE 8.2
SHOULD A MUSLIM WOMAN WHO WEARS A NIQAB BE ALLOWED TO TESTIFY IN COURT
AGAINST HER ALLEGED PERPETRATOR?
In 2008, a preliminary hearing was held in an Ontario provincial court
involving a case in which the cousin and uncle of a woman known as
N.S., the alleged victim, were charged with sexual assault. When called
by the prosecution as a witness, N.S., a Muslim, indicated that she
wished to testify wearing her niqab. She stated that her religious belief
required her to wear a niqab in public where men and other close
family members might see her. N.S. indicated that she had removed
her niqab for her driver's licence photo (taken by a woman) and would
remove it if required to clear customs. The presiding judge held that
N.S.'s religious beliefs were not that strong and ordered her to remove
her niqab. N.S. objected and applied to the Superior Court of Justice
to quash the provincial court order and to permit her to testify wearing
the niqab.
The case moved on to Superior Court of Justice and then to
the Ontario Court of Appeal, and ultimately to the sec. In 2012, in
R. v. N.S. (2012 sec 72), the sec ruled that a Muslim witness may
be required to remove her niqab to testify in court, depending upon
the seriousness of the case and the sincerity of her religious beliefs.
Included in its ruling was the following statement:
Always permitting a witness to wear the niqab would
offer no protection for the accused's fair trial interest and
the state's interest in maintaining public confidence in
the administration of justice. However, never permitting
a witness to testify wearing a niqab would not comport
with the fundamental premise under the Charter that
rights should be limited only to the extent that the limits
are shown to be justifiable. The need to accommodate
and balance sincerely held religious beliefs against other
interests is deeply entrenched in Canadian law.
If wearing the niqab did not pose a risk to a fair trial, then it would
be permitted. The case was returned to the provincial judge to make
the final determination, which was to require N.S. to remove her
"He'll do."
NEL
Women wearing niqabs
niqab in order to testify.a,bAmong the views expressed about the sec
was that it further marginalized Muslim women and ensured continued
discrimination against them .c
QUESTIONS
1. What is your perspective on this issue?
2. Do you think that the sec struck the right balance between
the need to accommodate an individual's religious practice and
the rights of the accused?
• M.H. Ogivlie. 2013. "Naqabs in Ganadian Courts: R. v. N.S." Ecclesiastical Law
Journal, 15(3), 334-343;
b S. Mulrain. 2013, May 18. "R. v. N.S. - Redux [on wearing the niqab in Court]."
http://www.mondaq.com/canada/x/239016/trials+appeals+compensation/R+v
+NS+Redux.
< L. Chambers and J. Roth. 2014. "Prejudice Unveiled:The Niqab in Court," Ganadian
Journal of Law & Society, 29(3), 381-395; R. v. N.S., 2012 sec 72.
lower socio-economic levels are most at risk of being wrongfully convicted.
Indigenous persons are overrepresented in the group of wrongfully convicted
persons.85
One wrongfully convicted Indigenous man stated his lawye r had urged
him to plead guilty because he would have had to take the stand in the
court and "my credibility would be a big problem because of m y criminal record. In th e end, it came down to a contest between me with my
criminal record , and Dr. Smith (the Crown's expert witness] with his
credentials." 86
In another case, Anthony Hanemaayer, who was charged with assault
based on an attack of a 15-year-old girl at knifepoint, pied guilty and was
sentenced to two yea rs less a day in a provincial jail. In 2006, another
offender admitted to committing the crime. Hanemaaye r said that he
CHAPTER 8: The Prosecution of Criminal Cases
233
followed the advice of his lawyer to accept a plea bargain after his lawyer's warning
that he faced a long prison sentence if convicted at trial. 87
Wrongful convictions rarely occur as the result of a single mistake or event; they
are almost always a consequence of a series of events. These include "tunnel vision"
on the part of police and the Crown (that is, the focus of the investigation was too
narrow); mistaken eyewih1ess identification and testimony; false confessions; the testimony of in-custody informers; and defective, unreliable, and unsubstantiated expert
testimony. 88,89 Research studies, for example, have consistently found tl1at eyewitness
testimony is notoriously unreliable, and caution should be exercised by justice system
personnel in using eyewih1ess testimony to establish the facts in a criminal case. 90 In
other cases, accused persons have been wrongfully convicted on the basis of testimony
from experts and suspect scientific evidence.
Sections 696.1 to 696.6 of the Criminal Code- "Applications for Ministerial
Review-Miscarriages of Justice" -give the federal minister of justice the power to
review criminal cases to determine whether there has been a miscarriage of justice.
These regulations set out the requirements for an application for a criminal conviction review. Completed applications are forwarded to the Criminal Conviction
Review Group (CCRG ); lawyers on that body review and investigate the applications and make recommendations to the minister (see http://canada.justice.gc.ca/
eng/cj-j p/ccr-rc/i ndex. html ).
Innocence Canada (formerl y tl1e Association in Defence of the Wrongfully
Convicted; http://innocencecanada .com) has been instrumental in having the
convictions of a number of persons overturned. Two of the earliest high-profile
cases of wrongful conviction were those of David Milgaard and Donald Marshall.
David Milgaard was convicted and given a life sentence in 1970 for the murder of
a Saskatoon nursing aide. He spent 23 years in prison before the Supreme Court of
Canada set aside his conviction in 1992. Five years later, he was exonerated by D A
evidence. In 1999, Larry Fisher was found guilty of the murder. Milgaard received a
$10 million settlement for his wrongful imprisonment.
Donald Marshall, a Mi'kmaq, was sentenced to life imprisonment in 1971 and spent
11 years in prison before being acquitted by the I ova Scotia Court of Appeal in 1983.
A Royal Commission of Inquiry concluded that incompetence on ilie part of the police
and the judiciary contributed to his wrongful conviction, as did the fact that he was an
Indigenous person. 91
THE ROLE OF THE POLICE
It was noted in Chapter 6 that police role in wrongful convictions is often associated
with the interrogation of a suspect and a confession (later found to be false ) to having
committed the crime.
THE ROLE OF CROWN COUNSEL
Crown counsel exercise considerable control over how cases are processed in the
justice system, from participating in plea bargaining with defence lawye rs, to the
selection of jurors, to how evidence against the accused is presented. In extreme
cases, Crown counsel do not abide by the law or professional ethics, and this can
lead to wrongful convictions. It has also been argued that there is a "culture of
infallibility" among Crown attorneys that ma y hinder admission that mistakes have
been made. 92
234
Part Ill: The Criminal Courts
NEL
In Manitoba, Crown prosecutor George Dangerfield presided over at lea~, 1vu.
cases in which accused persons were subsequently found to have been wrongfully convicted . Subsequent investigations discovered that Dangerfield failed to disclose exculpatory evidence, that is "evidence that may justify or excuse an accused defendant's
actions, and which will tend to show the defendant is not guilty or has no criminal
intent" (http://www.legalclictionary.thefreedictionary.com/Exculpatory+eviclence). In
addition to the shattered lives of the persons prosecuted by Dangerfield, the province
of Manitoba has paid out millions of dollars to the wrongfully convicted. See the
video, "The Wrong Man," in the Media Links section at the encl of this chapter.
A number of accused persons were wrongfully convicted in cases prosecuted by
George Dangerfield . One was Frank Ostrowski, Sr. who spent 23 years in prison before
a federal investigation determined that a likely miscarriage of justice occurred . Among
the findings of the investigation were that the police and Crown counsel Dangerfield
had concealed the fact that a key prosecution witness had perjured himself and given a
deal for testifying against Ostrowski. 93
In a landmark decision (Henry v. British Columbia (Attorney General), 2015 SCC 24),
the SCC ruled that Ivan Henry, who spent 27 years in prison after being wrongfully convicted , could sue the prosecutors involved in his wrongful conviction case
for non-disclosure of evidence at trial. Prior to this, Crown prosecutors had been
generally immune from lawsuits.
THE ROLE OF EXPERT WITNESSES
T Frank Ostrowski, Sr. was wrongfully
convicted in a case prosecuted by George
Dangerfield.
NEL
Expert witnesses can have a significant impact on the crim inal court process.
Conflicting testimony may be given by experts on behalf of the Crown and the
defence. Scholars have noted that historically there has been a reluctance on the
part of the judiciary to examine the independence and the validity and reliability of
the views of expert witnesses. 94 Traditionally, experts testifying in court were generally from the "hard sciences," including forensics. In recent yea rs, experts from the
"soft sciences," including criminology, psyc hology, and anthropology, are involved
as expert witnesses, and this has raised concerns of the reliability and validity of the
testimony. 95
A recent high-profile case in Ontario, however, involved Dr. Charles Smith, a
forensic pathologist whose expert testimony in several cases of child death contributed
to the wrongful conviction of several persons. An inquiry conducted by Mr. Justice
Stephen Goudge found that Smith made false and misleading statements to the court
in his testimony and that Smith was an unqualified pathologist who did not acknowledge the limits of his professional expertise. 96
A report of the Ontario coroner concluded that there were significant problems with 20 of 44 autopsies carried out by Smith on deceased children. His
testimony in court may have resulted in the wrongful conviction of 13 persons
and an additional number of persons who were initially wrongfully charged
with killing chilclren. 97
Smith had presented evidence on causes of death even though his formal
training was in pediatric pathology, which is the study of disease in children and
youth. Smith was subsequently stripped of his medical licence by the Ontario
College of Phys icians and Surgeons, which made a finding of professional misconduct and incompetence. For an excellent account of the impact of Charles
Smitl1 on the accused and tl1eir families, see Death in the Family. 98 One of the
cases involving Dr. Smitl1 is presented in Court File 8.3.
CHAPTER 8: The Prosecution of Criminal Cases
235
COURT FILE 8.3
THE WRONGFUL CONVICTION OF TAMMY MARQUARDT
Tammy Marquardt was born in Toronto of Anishinaabe
heritage. She left home at age 17 after being sexually
abused by her mother's boyfriend. She gave birth two
years later to a son, Kenneth, who had a number of
health issues, including epilepsy. In October 1993,
while living in poverty in an abusive relationship,
Tammy found Kenneth, now two-and-a-half years
old, gasping for air; she called emergency services.
Kenneth died three days later from brain damage.
The autopsy was performed by Dr. Charles
Smith who concluded that Kenneth's death was not
accidental. In 1995, despite a plea of not guilty,
Marquardt was convicted of second-degree murder
Tammy Marquardt holding aphoto of her
and was sentenced to life in prison with no possison, Kenneth
bility of parole for 10 years. Her other two children
were taken from her and put up for adoption.
Ten years later, Tammy's case was reviewed along with all of the other cases in which
Dr. Smith had performed autopsies. Along with others, the findings in her case were found to
incorrect and, in 2012, a new trial was ordered. The Crown subsequently decided not to retry
her, and she was exonerated in the death of her son. She had served 14 years in prison.a For the
story of Tammy Marquardt, see the book Real Justice: Branded a Baby Killer: The Story of Tammy
Marquardt by J. D'Costa, 2015. Toronto: Lorimer.
• G. Malone. 2016, February 2. "Why Indigenous Women Are Canada's Fastest Growing Prison Population," Vice News.
https://www.vice.com/en_ca/article/5gj8vb/why-indigenous-women-are-canadas-fastest-growing-prison-population.
Settlements in cases of wrongful conviction can amount to millions of dollars,
although, it could be argued, no amount of money can compensate for the lost yea rs.
Ivan Henry of British Columbia received $8 million after spending more than 27 years
in prison after being wrongfully convicted of a series of violent sexual assaults. In a
ruling in 2016, a judge stated that the Crown in the case had shown a "shocking disregard" for Henry's rights by withholding evidence in the case. 99
Cases of wrongfully convicted persons continue to emerge. In 2014, Leighton
Hay was freed after serving 14 years in prison for a murder he always denied having
committed. The Ontario Superior Court of Justice issued a rare apology for taking
so long "to get things right." IOO Wrongful conviction cases highlight the flaws that
continue to exist in the criminal justice system, often with significant consequences
for the accused. It is estimated that at least one in 25 convicted persons on death
row in the U.S. are innocent. IOI Another case involving a potentially innocent
Indigenous man who, as of 2017, had served 34 yea rs in prison was being heard in
late 201 7.
A major concern is that the criminal justice system and the SCC have not proven
to be effective in preventing persons from being wrongfully convicted. Many persons
who were wrongfully convicted, including David Milgaard , had their cases heard
before the SCC. 102
236
Part Ill: The Criminal Courts
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RESTORATIVE JUSTICE APPROACHES
There are a variety of restorative justice-centred programs that operate across the
country and which can be accessed prior to the imposition of a sentence.
THE OTTAWA RESTORATIVE JUSTICE PROGRAM
The Collaborative Justice Program is a post-plea, pre-sentence restorative justice program premised on restorative justice principles. It operates in the Ottawa-Carleton
judicial district and is designed to provide an alternative to the traditional criminal
justice process. The program is unique in that it takes cases involving serious criminal
offences. The objective is to facilitate a dialogue between the victim and the offender
that can be presented to the court at sentencing.
The program considers cases of serious offending, including robbery, break and
enter, assault causing bodily harm , weapons offences, and driving offences that
involve death or bodily harm and in which a conviction would normally result in
a period of incarceration . Cases are referred to the program by a variety of sources,
including the judiciary, the Crown or defence counsel, police, probation, and
victim services.
Three criteria must be met before a case is accepted by the program: (1) The crime
is serious and the Crown is seeking a period of custody; (2) the accused person displays remorse and is willing to take responsibility for and work to repair the harm
done; and (3) there is an identifiable victim who is interested in participating. The
experience of one offender with the Collaborative Justice Program is presented in
Court File 8.4.
\.
COURT FILE 8.4
ASSAULT WITH A WEAPON: AN OFFENDER SPEAKS ABOUT THEIR
EXPERIENCE WITH THE COLLABORATIVE JUSTICE PROGRAM
I was involved in an unfortunate incident months ago which resulted in criminal charges brought
against me. I'm a middle-aged professional, hard-working, responsible, family-oriented, and engaged
in the community who has never been involved in disputes like that, let alone with the police.
Out of frustration of experiencing the same noise situation for the last seven years, I made a
mistake when I let my anger control my actions. After this happened, a new chapter started in my life.
First came the extreme worry for the well-being of two individuals that suffered because of what I did,
and then, the feeling that "everything was over for me," a mix of shame, regret, and lack of hope.
Soon after the incident I contacted a lawyer to represent me. I was in good hands but felt that
only the "legal" side of things was being taken care of, not the "human" side of the situation: the
side that included all affected by the incident.
Fortunately, eventually I got involved with the Collaborative Justice Program. Actually, I think
the word "fortunately" cannot really express I mean ... getting involved with the Program has really
made a big difference in my life and I believe in the lives of the other people involved. The restorative
approach was really effective; in my case it provided me the opportunity to apologize to victims (in
writing) and ask them what I could do to help them. It led me to seek assistance in addressing and
learning techniques to manage anger. And it helped me to be a more compassionate person overall.
Source: Collaborative Justice Program: Restorative Justice Ottawa. http://www.collaborativejustice.ca/EN/testimonials/
testimonial.php?i=19. Reprinted with permission from the Collaborative Justice Program.
NEL
CHAPTER 8: The Prosecution of Criminal Cases
237
SUMMARY
The discussion in this chapter has focused on the prosecution of criminal cases. There
are a number of events that occur prior to trial that affect the outcome of cases. Judicial
interim release (bail) is available for many offenders and often has conditions attached
that, in the view of some observers, set the accused person up to fail. While all accused
persons have the right to legal representation, there is no obligation on the provinces/
territories to pay for it and many people without means do not quality. Plea bargaining
is a controversial practice in the criminal courts as it is not subject to legislative provisions or guidelines. Defence lawyers can employ a number of defences at trial,
including not criminally responsible on account of mental disorder ( CRMD), which
has stirred controversy. Although jury trials are rare in the criminal justice system,
little is known about the challenges that juries face in understanding testimony and
reaching a verdict. Cases of wrongful conviction continue to occur and are often the
result of decisions made by the police, Crown prosecutors, and eyewitnesses. There
are restora ti ve justice programs that operate at the pre-sentencing phase of the criminal justice process.
KEY POINTS REVIEW
1. There are a number of steps involved in bringing a case to criminal court and a key role
is played by Crown counsel.
2. The police and Crown exercise considerable discretion in deciding whether to lay a
charge, and many factors may influence their decision.
3. There are a number of ways in which accused persons can be compelled to appear in
court to answer the charge against them, including issuing an appearance notice, issuing
a summons, and remanding the accused into custody.
4. The bail system places heavy demands on the criminal justice system, and in recent
years, it has become more restrictive and has included more conditions on the person
who is released on bail.
5. There are more persons in custody on remand awaiting trial than there are sentenced
offenders in custody.
6. Security certificates are processes whereby non-residents of Canada who are deemed a
threat to the country can be held, without charge, for an indefinite period of time with
the objective of deportation.
7. There is no blanket right to state-paid legal representation, and funding cuts in legal aid
have made it difficult for many accused to access legal assistance.
8. A fundamental principle of the common law is that the accused person must be fit to
stand trial.
9. The most common defences for accused can be generally grouped into (1 ) "you've got
the wrong person"; (2) the mental state of the accused at the time the alleged offence
occurred; (3) justifications (or excuses) for having committed a criminal act; and
(4) procedural defences.
10. Plea bargaining is a widely used, yet controversial, practice in the criminal justice
process.
11 . With a few notable exceptions (e.g. the SCC), cameras are not allowed in Canadian
courtrooms.
238
Part Ill: The Criminal Courts
NEL
12. There has been a growing emphasis on the rights of crime victims in the court process,
although victims continue to experience difficulties.
13. Challenges have been experienced in accommodating diversity in the courtroom, as
exemplified by the controversy over whether a victim can wea r a niqab whi le giving
testimony.
14. Increasing attention is being given to the wrongfully convicted and to the activities and
decisions of the police, prosecutors, and judges that contribute to miscarriages of justice.
15. There are restorative justice programs that operate at the post-conviction , pre-sentencing
phase of the criminal court process.
KEY TERM QUESTIONS
l. What is the difference between summary conviction offences and indictable offences?
What is a hybrid (elective) offence?
2. What role does the preliminary hearing play in the prosecution of criminal cases?
3. What is judicial interim release (bail) and what are the issues that surround its use?
4. Describe remand and its significance for the study of the criminal court process.
5. Why are security certificates the focus of controversy?
6. What are the issues that surround plea bargaining?
7. What is the open court principle and why is it an important concept in the study of
criminal justice?
8. In what situations would a Crown counsel enter a stay of proceedings?
9. Describe the defence of not criminally responsible on account of mental disorder and
note why is it controversial.
10. What is the difference between restitution and criminal injury compensation?
CRITICAL THINKING EXERCISE
Critical Thinking Exercise 8.1
Cases of the Wrongfully Convicted: Lessons Learned?
Wrongful convictions are a problem that continues to plague the criminal justice system.
Although each case is different, identifying the commonalties among the cases is important
for preventing future cases. Access the list of some of the persons (as of late 2017) who
have been found to have been wrongfully convicted at http://www.cbc .ca/news/canada/
canada-s-wrongful-convictions-1. 783998. Select two cases from the list of the wrongfully
convicted persons. Read them, noting the key elements of each case.
Your Thoughts?
1. Which cases did yo u review?
2. Among the cases, what were the similarities and differences in the dynamics that led to
the wrongful conviction?
3. Identify three recommendations that could be made from the case studies that might
reduce the likelihood of wrongful convictions in the future.
NEL
CHAPTER 8: The Prosecution of Criminal Cases
239
CLASS/GROUP DISCUSSION EXERCISE
Class/Group Discussion Exercise 8.1
The Trial of Ji an G homeshi: Consent and Sexual Assault
Jian Ghomeshi was a high-profile radio host at CBC. In 2014, he was arrested and
charged with four counts of sexual assault and one count of overcoming resistance by
choking involving three separate women.• In 2015, he was charged with three additional
counts of sexual assault involving three additional women. Ghomeshi pied not guilty to all
of the charges.
The trial proceedings were highl y contentious, with the defence arguing that one of
the complainant's statements to the police was different from her testimony in court,
that there were length y delays in the complainants' reporting the alleged assaults to the
police, that two of the complainants colluded about the testimon y they would present in
court, and other inconsistencies in their evidence about whether they had contact and
sexual encounters with Mr. Ghomeshi after the alleged assaults.b ln 2016, Ghomeshi
was acquitted on all of the charges, the presiding judge noting that the inconsistency of
the compla inants' testimony and "outright deception " had undermined the prosecution's
case. Crown counsel subsequently withdrew a charge of sex ual assault on a separate
incident.
The ruling in the case generated considerable debate. The judge was accused of blaming
the victims and contributing to the silencing of women who have been victims of sexual
assault and to the perception that the women complainants were the ones who were
on triaJ. c Concerns were expressed that the intense scrutiny of the three complainants
at trial by Ghomeshi's defence lawye r will dissuade women from coming forward with
complaints of being sexually assaulted.cl Watch the Fifth Estate documentary, "The
Trial of Jian Ghomeshi ," at http://www.cbc.ca/fifth/episodes/2015-2016/the-trial-of-jian
-ghomeshi.
Your Thoughts?
1. What does the trial of Jian Ghomeshi reveal about the challenges surrounding consent,
sexual assau lt, and the law?
• R. Doolittle, J. Mahoney, and J. Bradshaw. 2014,
ovember 26. ''Chomeshi Faces Five Charges in Sexual Assault
Case, ls Granted Bail," Globe and Mail. https:i/MV\v.theglobeandmail.com/news/national/jian-ghomeshi-charged
-with-sexual-assault/article2178863 I.
b M. Collom. 2016, February 8. "Jian Chomeshi Trial: Complainant Agreed to Date and Sexual Encounter
after Alleged Assault," CBC ews. http://www.cbc.ca/news/canada/toronto/jian-ghomeshi-sexual-assault
-trial-1.3436593.
c CBC News. 2016, March 24. "Jian Chomeshi Trial's
ot Guilty Decision Triggers Outrage, ~larch to Police
Heaclquarters." http://w\\~v.cbc.ca/news/canacla/toronto/j ian-ghomesh i-j udge-ru Ii ng-1. 3504 250.
d R. Charles. 2016, February IO. "Jian Chomeshi Trial Could Deter Women from Reporting Sexual Assault,"
CBC ell's. http:/A.~,w.cbc.ca/news/canada/toronto/ghomeshi-trial-sexual-assault-chill-1.3441059.
MEDIA LINKS
"A Question of Innocence," The Fifth Estate, CBC
player/play/18660060 30
ews, April 1, 2011, http://www.cbc.ca/
"Bus 11 70: Vince Li and the Greyhound Bus Murder," The Fifth Estate, CBC
2017, https://www.youtube.com/watch?v==3gAeVysC il8
"The Wrongful Conviction of Ivan Henry,"
watch?v==PJS-qSH46kc
240
Part Ill: The Criminal Courts
ews, January 6,
ovember 25, 2014, https://www.youtube. com/
NEL
" CR: ot Criminally Responsible," CBC Doc Zone, October 18, 2014, http://www.cbc
.ca/doczone/episodes/not-criminally-respons ible
"Diagnosis Murder: Exploring the Suspect Science behind Shaken Baby Accusations,"
The Fift.h Estate, CBC ews, January 13, 2012, https://www.youtube.com/
watch?v=6yuxEv 8gp0
"The Disgrace of Charles Smith," The Agenda with Steve Pa/kin, 1VO, February 9, 2017,
http://tvo.org/a rti cl e/cu rren t-affa irs/shared-val u es/death-in-the-fa mi Iy-th e-story-of
-disgraced-doctor-ch a rl es-smith-and-the-fa mi Ii es-he-destroyed
"Charles Smith Scandal: How A Mother Wrongly Accused of Killing Her Son Fought
Back," The Current, CBC Radio, January 12, 2017, http://www.cbc.ca/listen/shows/
the-current/segment/113 3852 3
"The Wrong Man," The Fifth Estate, CBC
episodes/2009-20 I 0/the-wrong-man
ews, March 5, 2010, http://www.cbc.ca/fifth/
"Steven Truscott-His Word Aga inst History," The Fifth Estate, CBC ews, http://www
.c be.ca/fifth /ep isodes/40-yea rs-of-th e-fi fth-esta te/steven-truscott-h is-word-against
-history
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NEL
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CHAPTER 8: The Prosecution of Criminal Cases
241
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20. Ibid.
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242
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Part Ill: The Criminal Courts
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42. M.P. Piccinato. 2004. Plea Bargaining. Ottawa:
Department of Justice Canada. http://www.justice.gc.ca/
eng/rp-pr/csj-sjc/il p-pj i/pb-rpc/pb-rpc. pelf.
43. J. Kennedy. 2016. "Plea Bargains and Wrongful
Convictions," Criminal Law Quarterly, 63(4), 556-566.
44. Law Reform Commission of Canada. 1975. Criminal
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Ottawa: Information Canada, p. 14. http://www.lareau-law
.ca/LRCWPl 5.pdf.
45. M. Manikis. 2012. "Recognizing Victims' Role and Rights
During Plea Bargaining: A Fair Deal for Victims of Crime,"
Criminal Law Quarterly, 58(3-4), 411.
46. Kennedy, "Plea Bargains and Wrongful Convictions."
47. Doob and Webster, 'Weathering the Storm?," p. 364.
48. Kennedy, "Plea Bargains and Wrongful Convictions."
NEL
49. I. Hanomansing. 2016, September 18. "Legal Profession
'Willing to Set Logic Aside' to Bar Cameras from Courtrooms,"
CBC
ews. http://www.cbc.ca/news/canada/camera-court
-room-benefi t-harm-travis-vader-trial-1. 3767 349.
50. Canadian Press. 2016, September 15. "A Look at Rare
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in Court." C1V ews. http://www.ctvnews.ca/canada/a
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51. Hausegger, Hennigar, and Riddell, Canadian Courts:
Law, Politics, and Process, p. 293 .
52. L. Silver. 2016, August 11. "Modernizing Circumstances: Revisiting Circumstantial Evidence in R. v.
Villaroman," ABlawg.ca. http://ablawg.ca/2016/08/11/
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53. A. Maxwell. 2017. "Adult Criminal Court Statistics in
Canada, 2014/2015," furistat, 37( l ). Statistics Canada
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54. M. Sinha. 2009. An Investigation into the Feasibility of
Collecting Data 011 the Involvement of Adults and Youth
with Mental Health Issues in the Criminal Justice System .
Ottawa: Minister of Industry. h ttps://www. pu bl icsafety.gc.ca/
]brr/arch ives/cnmcs-plcng/statcan-cj rps-no 16-eng. pdf.
55 . Verdun-Jones, Criminal Law in Canada, p. 185.
56. A.G . Crocker, TL. icholls, M.C. Seto, Y. Charette, G.
Cote, and M. Caulet. 2015. "The ational Trajectory
Project of Individuals Found ot Criminally Responsible
on Account of Mental Disorder in Canada. Part 2: The
People behind the Label," Canadian Journal of Psychiatry,
60(3), 106-116.
icholls, M.C. Seto, G . Cote, Y.
57. A.G. Crocker, TL.
Charette, and M. Caulet. 2015. "The National Trajectory
Project of Individuals Found ot Criminally Responsible
on Account of Mental Disorder in Canada. Part 1: Context
and Methods," Canadian Journal of Psychiatry, 60(3),
98-105 at p. 98.
58. Department of Justice Canada. 2014, July 11. "Coming
into Force of the ot Criminally Responsible Reform
Act" [ ews release]. http://news.gc.ca/web/article-en.do
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59. A.G. Crocker, TL. icholls, M.C. Seto, and G. Cote.
2015. "The ational Trajectory Project of Individuals
Found ot Criminally Responsible on Account of Mental
Disorder in Canada," Canadian Journal of Psychiatry,
60(3), 96-97.
60. S. Mach and K. Daniels. 2015 , March 2. "The Not
Criminally Responsible Reform Act: A Recap of the
NEL
MLJH Annual Colloquium," McGill Journal or Luw
6 Health . Online. https://mjlh .mcgill.ca/2015/03/02/
the-not-cri mi na l ly-responsi ble-reform-act-a-recap-of
-th e-mljh-annual-colloquium/.
61. Crocker,
icholls, Seto, and Cote, "The
ational
Trajectory Project of Individuals Found Not Criminally
Responsible on Account of Mental Disorder in Canada."
62. y· Charette, A.G. Crocker, M.C. Seto, L. Salem, T.L.
icholls, and M. Caulet. 2015. "The ational Trajectory
Project of Individuals Found Not Criminally Responsible
on Account of Mental Disorder in Canada . Part 4: Criminal
Recidivism," Canadian fournal ofPsychiatry, 60(3), 127-134.
63. Mach and Daniels, "The ot Criminally Responsible
Reform Act: A Recap of the MLJH Annual Colloquium."
64. S. . Verdun-Jones. 2011. Criminal Law in Canada: Cases,
Questions and the Code. Toronto: elson .
65. S. Boesveld. 2014,
ovember 26. "Canadian Law
Decisive on What Constitutes Sexual Consent: There's
othing 'Implied' or 'Implicit' About It," ational Post.
http:/ /nation al post. com/news/ca nada/ca nadian-law
-decisive-on-wha t-consti tu tes-sexua 1-consen t-theres
-nothing-implied-or-implicit-about-it.
66. A. Csanady. 2017, March 3." ova Scotia Judge Facing
Formal Complaints, Petitions, for Finding Cabbie ot
Guilty of Sexual Assault,"
ational Post. http://news
.nationalpost.com/news/canada/nova-scotia-judge-facing
-form a I-complain ts-peti tions-for-fi ndi ng-ca b bie-not-gu il ty
-of-sex-assault.
67. Ibid.
68. K.-L. Tang. 2003. "Battered Women Syndrome Testimony
in Canada: Its Development and Lingering Issues,"
International Journal of Offender Therapy and Comparative
Criminology, 4(6), 618-629.
69. E. Sheehy, J. Stubbs, and J. Tolmie. 2012. "Battered
Women Charged with Homicide in Australia, Canada and
ew
ew Zealand: How Do They Fare?" Australian 6
Zealand Journal of Criminology, 45(3), 383-399.
70. S. eil. 2013, January 22. "Supreme Court Clarifies the
Law of Duress, Ends Nicole Ryan 's Tragic Ordeal,"
TheCourt.ca. http://www.thecourt.ca/supreme-court-clarifies
-the-law-of-cl u ress-ends-n icole-rya ns-tragic-ordeal.
71. E. Ono. 2017. "Reformulating the Use ofBattered Woman
Syndrome: Testimonies in Canadian Law: Implications for
Social Work," Journal of Women and Social Work, 32(1),
24-36.
72. CBC
ews. 2011, March 16. "Ont. Murder Trial Halted
for Lack of Aboriginal Jurors." http://www.cbc.ca/news/
ca nada/on t-mu rder-tria I-halted-for-lack-of-aboriginal
-jurors-1.1053442.
CHAPTER 8: The Prosecution of Criminal Cases
243
ations
Representation on Ontario Juries. Report of the
Independent Review Conducted by The Honourable Frank
Iacobucci. Toronto: Government of Ontario. https://
/5. The Honourable F. Iacobucci.
2013. First
www.attorneygeneral.jus.gov.on .ca/engl ish/about/pu bs/
iacobucci/Fi rst_ a tions_Represen ta tion_Ontario
_Juries.html.
86. Cited in Roach , "The Wrongful Conviction of Indigenous
People in Australia and Canada," p. 212.
87. CBC ews. 2009, August 8. "Canada's Wrongful Convictions." http://www.cbc.ca/news/canada/canada-s-wrongful
-convictions-I. 783998.
88. Federal/Provincial/Territorial Heads of Prosecutions. 2011.
The Path to Justice: Preventing Wrongful Convictions. Report
of the Federal/Provincial/Territorial Heads of Prosecutions
Subcommittee on the Prevention of Wrongful Convictions.
74. C. Perkel. 2013 , June 13. "Manslaughter Conviction
Tossed Over Lack of Aboriginals on Ontario Juries,"
ational Post. http://www.cbc.ca/news/canada/thunder-bay/
manslaughter-conviction-tossed-over-lack-of-aboriginals-on
-jury-1.1385058.
75. M. Blanchfield. 2015. "Supreme Court Upholds Aboriginal
Man's Manslaughter Conviction," Globe and Mail, May 21,
https://www.theglobeandmail.com/news/national/supreme
-court-rules-in-ontario-case-on-lack-of-aboriginals-on-juries/
article2454 l 580.
76. D.J. Devine, L.D. Clayton, B.B. Dunford, R. Seying,
and J. Pryce. 2000. "Ju ry Decision Making: 45 Years of
Empirical Research on Deliberating Groups," Psychology,
Public Policy, and Law, 7(3), 622-727.
77. B.P. Hrycan. 2006. "The Myth of Trial by Jury," Criminal
Law Quarterly, 51(2), 157-168.
78. D.E. Shelton , Y.S. Kim , and G. Barak. 2006. "A Study of
Juror Expectations and Demands Concerning Scientific
Evidence: Does the 'C SI Effect' Exist?" Vanderbilt
Journal of Entertainment 6 Technology Law, 9(2),
331-368.
Ottawa . Public Prosecution Service of Canada. https://
www. ca cp. ca/I aw-a mend men ts-com rn i ttee-a c ti vi ti es
.hbnl?asst_id=468.
89. R. Bajer, M. Trepanier, E. Campbell, D. LePard ,
Mahaffy, J. Robinson, and D. Stewart. 2007. Wrongful
Convictions in Canada. Vancouver: International
Society for Reform of the Criminal Law. http://www
. mi 11 erth omso n. com/assets/fi I e/a rtic I e_a ttac h men ts/
Wrongful_Convictions_in_Canada.pdf.
90. G.L. Wells, A. Memmon, and S.D. Penrod . 2006.
"Eyewitness Evidence. Improving Its Probative Value,"
Psychological Science in the Public Interest, 7(2), 45-75 .
91. The Honourable T.A. Hickman. 1989. Royal Commission
on the Donald Marshall, Jr. Inquiry. Halifax: Government
of ova Scotia. https://www.novascotia.ca/just/marshall
_inquiry/ _docs/Roya I% 20Com mission % 20011 %
20the%20Donald%20Marshal 1%20J r%20 Prosecu tion
_findings.pdf.
92. J. Kennedy. 2016. "Crown Culture and Wrongful
Convictions," Criminal Law Quarterly, 63 (4 ), 414-4 38.
79. I. Roumeliotis. 2017, January 15. "'It's Still a ightrnare':
The Case of Jurors Released with PTSD and Little or o
Help after Verdict," CBC ews. http://www.cbc.ca/news/
health/jury-duty-ptsd-help-1.3931643.
93.
80. M. Lindsay. 2014. A Survey of Survivors of Sexual Violence
in Three Canadian Cities. Ottawa: Department of Justice
Canada, p. 24. http://www.justice.gc.ca/eng/rp-pr/cj-jp/
victim/rr l 3_19/rr 13_19.pdf.
94. E. Cunliffe. 2013. "Independence, Reliability, and Expert
Testimony in Criminal Trials," Australian Journal of
Forensic Sciences, 45(3), 284-295.
81. Ibid ., p. 27.
82. Ibid ., p. 25.
83. From R. Talusan. 2017, May 3. "When Criminal Court
Failed My Rape Case, I Tried Criminal Compensation ,"
Vice
ews. https://www.vice.com/en_ca/article/when
-c rim i na 1-cou rt-fa i Ied-m y-ra pe-c ase-i-tr ied-c rim i na I
-compensation. Reprinted by permission of VICE.
84. K. Roach. 2015. "The Wrongful Conviction oflndigenous
People in Australia and Canada," Flinders Law Journal,
J7(2), 203-262. https://papers.ssrn.com/sol3/papers.cfm
?abstract_id=2739386.
95. K.M. Campbell. 2011. "Expert Evidence from 'Social'
Scientists: The Importance of Context and the Impact on
Miscarriages of Justice," Canadian Criminal Law Review,
16(11 ), 13-35.
96. The Honourable S.T. Goudge. 2008. lnquiry into Pediatric
Forensic Pathology in Ontario. Report. Toronto: Attorney
General of Ontario. https://www.attorneygeneral.jus.gov.
on.ca/inquiries/goudge/report/index.html.
97. Ontario Office of the Chief Coroner. 2007. Public
Announcement of Review of Criminally Suspicious and
Homicide Cases Where Dr. Charles Smith Conducted
Autopsies or Provided Opinions. Toronto: Author. http://
govdocs.ourontario.ca/node/27525.
85. Ibid.
244
. Macdonald. 2009, October 22. "Wrong Man, Yet
Again?" Maclean's. http://www.macleans.ca/news/canada/
wrong-man-yet-again.
Part Ill: The Criminal Courts
NEL
98. J. Chipman. 2017. Death in the Family. Toronto:
Doubleday Canada.
99. A. Woo. 2016, June 8. "Ivan Henry Awarded $8--Million for
27 Years of Wrongful Imprisonment," Globe and Mail.
https://www.theglobeandmail.com/news/british-columbia/
bc-j udge-awa rds-i van-hen ry-8-mi 11 ion-for-wrongfu I
-imprisonment/article 30 350882.
100. A. Maki. 2014, ovember 28. "Wrongfully Convicted of
Murder, Leighton Hay Free After 12 Years," Globe and Mail.
NEL
https://www. theglobeandmail.com/news/national/wrong,y
-convicted-of-mu rder-leigh ton-ha y-free-a fter-12-yea rs/
article21825039.
101. S.R. Gross, B. O'Brien, C. Hu, and E.H. Kennedy. 2014.
"Rate of False Conviction of Criminal Defendants Who
Are Sentenced to Death," Proceedings of the ational
Academy of Sciences, 111 (20), 7230-7235.
102. Kennedy, "Crown Culture and Wrongful Convictions."
CHAPTER 8: The Prosecution of Criminal Cases
245
After reading this chapter, you should be able to
• Identify the purpose and principles of sentencing.
• Identify and discuss the goals of sentencing.
• Discuss the sentencing options available to judges.
• Discuss the judicial options of judicial determination, judicial restraint order,
dangerous offender, and long-term offender designation.
•
•
•
•
Identify and describe the considerations of judges in sentencing.
Discuss the issues surrounding the sentencing of Indigenous offenders.
Discuss the issues surrounding sentencing and crime victims.
Discuss the effectiveness of various sentencing options.
THE PURPOSE AND PRINCIPLES OF SENTENCING
Section 718 of the Criminal Code (R.S.C. 1985, c. C-46) sets out the purpose and
principles of sentencing:
The fundamental purpose of sentencing is to protect society and to contribute, along
with crime prevention initiatives, to respect for the law and the maintenance of a
just, peaceful and safe society by imposing just sanctions that have one or more of
the following objectives:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgement of the
harm done to victims or to the community.
Proportionality (in sentencing)
The sentence must be proportionate
to the gravity of the offence and to the
degree of responsibility of the offender.
An important principle in sentencing is proportionality: the sentence must be proportionate to the gravity of the offence and to the degree of responsibility of the offender
(s. 718.1 ). As well, the principle of restraint is designed to ensure that the sentence that
is imposed is "a just and appropriate punishment, and nothing more" (R. v. M. (C.A.),
[ I 996] S.C.J. no. 28, para . 80).
Principle of restraint
(in sentencing)
Ensures that the sentence that is
imposed is a just and appropriate
punishment, and nothing more.
THE GOALS OF SENTENCING: THE CASES
OF MR. SMITH AND MR. JONES
There are three primary groups of sentencing goals in the criminal courts: utilitarian, retributive, and restorative . The semi-fictitious cases of "Mr. Smith" and
"M r. Jones" (not their real names) will be used to illustrate how these sentencing
goals are applied.
Mr. Smith was a Quebec police chief and swimming coach who was convicted of
four counts of sexual assault for fondling two girls aged 12 and 13. Mr. Jones, a computer engineer in British Columbia, was convicted of sexual assault for fondling his
young stepdaughter over a two-year period. The cases of Mr. Smith and Mr. Jones neither of whom had a prior criminal record-were widely publicized in their respective communities, and both men eventually lost their jobs.
UTILITARIAN GOALS
Utilitarian sentencing goals focus on the future conduct of Mr. Smith , Mr. Jones, and
others who might commit similar offences. These goals focus on protecting the public
from future crimes in the following ways:
• by discouraging potential Mr. Smiths and Mr. Joneses from crime (general deterrence);
• by discouraging Mr. Smith and Mr. Jones from doing it again (s pecific deterrence);
• by addressing the reasons why Mr. Smith and Mr. Jones did it (rehabilitation ); and
• by keeping Mr. Smith and Mr. Jones in jail to protect society (inca pacitation ).
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CHAPTER 9: Sentencing
247
RETRIBUTIVE GOALS
The past, rather than the future, is the focus of retributive sentencing goals, which
include the following:
• to express society's disapproval of Mr. Smith's and Mr. Jones's behaviour and to validate
existing laws (denunciation); and
• to make Mr. Smith and Mr. Jones "pay" for their offences, based on the philosophy "an
eye for an eye" (retribution ).
Central to the retributive goals of sentencing is the notion of proportionality; that
is, the sentences received by Mr. Smith and Mr. Jones should be proportionate to the
gravity of their offences as well as to their degree of responsibility.
RESTORATIVE GOALS
These goals are premised on the principles of restorative justice, introduced in Chapter 2.
As noted, restorative justice is based on the principle that criminal behaviour injures
not only victims but also communities and offenders. Any attempt to resolve the problems that the criminal behaviour has created should, therefore, involve all three parties.
Restorative justice approaches also have a utilitarian function in that they are designed
to protect the public from future criminal behaviour.
Since the victims in both these cases were children, they would be excluded from
any restorative justice forum . However, the victims' families would have the opportunity to discuss the impact of the crimes, and Mr. Smith and Mr. Jones would be held
accountable for their criminal behaviour.
WHAT SENTENCES DID MR. SMITH AND MR. JONES RECEIVE?
Under the Criminal Code (s. 271 )
Everyone who commits a sexual assault is guilty of
(a) an indictable offence and is liable to imprisonment for a term of not more than
10 years or, if the complainant is under the age of 16 years, to imprisonment for
a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or,
(b) an offence punishable on summary conviction and is liable to imprisonment for
a term of not more than 18 months or, if the complainant is under the age of
16 years, to imprisonment for a term of not more than two years less a clay and to
a minimum punishment of imprisonment for a term of six months.
Although neither Mr. Smith nor Mr. Jones had a prior criminal record and both
had a good job history, the offences they committed were serious and had a significant
impact on the victims. One of Mr. Smith's victims suffered long-term emotional and
academic problems, while Mr. Jones's former spouse and children experienced considerable emotional difficulties. The child victims in both cases had been young and
vulnerable. Mr. Smith had been an authority figure in the community, and parents
trusted him to supervise their children, a trust he violated. Similarly, Mr. Jones violated
the trust of his stepdaughter and most likely would have continued sexually abusing her
had she not informed her mother of his improper behaviour.
Mr. Smith was sentenced to two years less a day in a provincial correctional facility.
The Crown appealed the sentence on the grounds that it was too lenient. But the
Appeal Court upheld the sentence, in part because Mr. Smith had been fired from his
job as police chief and so had already experienced a severe sanction. The Appeal Court
248
Part Ill: The Criminal Courts
NEL
acknowledged that child abuse typically demands a denunciatory sentence tor me l"vtection of society, but noted that each case must be judged on its merits.
Mr. Jones was not so fortunate. He was sentenced to 18 months' confinement in a
provincial correctional facility and six yea rs in prison and sent to a federal correctional
facility. In explaining the sentence, the pres iding judge cited the objectives of denunciation and general and specific deterrence.
These two cases highlight the vast discretion that Canadian judges have in sentencing.
SENTENCING OPTIONS
The sentencing options from which Canadian judges may select, and a case example of
each, are set out in Table 9.1. ote that offenders who receive an absolute discharge or
a conditional discharge do not need to apply for a records suspension (formerl y referred
to as a "pardon") to have the charges removed from their records. These are the only
sentences to which this proviso applies.
TABLE 9.1
SENTENCING OPTIONS AND CASE EXAMPLES
Absolute discharge
The offender is found guilty but technically not convicted. The offence will appear on the offender's criminal record for one
year and then be removed.
Case example:
A young mother in Fort McMurray was given an absolute discharge after pleading guilty to stealing $638 worth of items from
Wal-Mart. The items included candy and baby sleepers. The presiding judge expressed concern as to how the woman ended
up in the situation and suggested that she seek professional help.a
Conditional
discharge
The offender is found guilty and released upon the condition that he or she comply with the conditions of a probation order
that may range from one to three years. tt the offender fails to meet the conditions, he or she may be returned to court to be
sentenced on the original charge. A conditional discharge remains on the offender's criminal record for three years after the
completion of the probation order. A key requirement is that the imposition of this sentence not be contrary to the public interest.
Case example:
A student suspended from the medical school at Dalhousie University in Halifax pied guilty to a charge of possessing a
high-capacity ammunition magazine for a gun. His psychiatrist had notified police after becoming concerned that persons
at the university were at risk of being killed. He had also been charged with uttering threats and engaging in threatening
conduct. While out on bail, he began going to counselling. A one-year period of probation was attached to the conditional
discharge, including that he not possess weapons or consume drugs without a prescription and that he take counselling
for mental health and anger management issues. Upon successful completion of the term of probation, he will not have a
criminal record. The presiding judge stated that a conditional discharge would not be contrary to the public interest.b
Suspended
sentence
The offender is convicted of the offence, but the imposition of the sentence is suspended pending successful completion of a
period of probation that may range from one to three years. A suspended sentence results in a criminal record.
Case example:
A 69-year-old man from El Salvador received a three-year suspended sentence in Regina Provincial Court for incidents relating to
the inappropriate touching of two women passengers on city buses. The judge held that the two incidents were "at the lower end
of the sexual assault spectrum" and noted that the man was elderly, had no prior record, and was remorseful for his actions. The
suspended sentence involved a three-year period of probation, including the condition that he provide a DNA sample to police. The
decision means that he will have a criminal record.c
Fine
The offender must pay a specific amount of money within a specified time or face the prospect of imprisonment for fine default.
Case example:
A Calgary couple was fined $12,000 after being found guilty of a single charge of neglect under the provincial Animal Protection
Act. A total of 91 pets who had been neglected were seized from their home and included 69 rabbits, 20 hamsters, a dog, and a
cat. Most of the animals had to be euthanized. In the house, there were piles of rabbit feces up to 45 centimetres deep.d
Forfeiture
Convicted offenders may be required to forfeit goods to the Crown. For example, those found in possession of counterfeit
money, narcotics, illegal pornography, hate propaganda, or some types of weapons or explosives may be required to hand
over these seized goods. The items are either destroyed or sold, with the proceeds going to the government. A "proceeds
of crime" provision in the Criminal Code also allows the government to seize money, property, vehicles, and other goods
acquired as a result of crimes.
(continued)
NEL
CHAPTER 9: Sentencing
249
TABLE 9.1
SENTENCING OPTIONS AND CASE EXAMPLES (Continued)
Case example:
Two gang members in British Columbia received lengthy prison terms for drug trafficking. The judge also ordered the forfeiture
of $100,040 police received from the gang members during a 2009 undercover sting by the police.e
Prohibitions
These may be attached to a sentence and can include prohibition from driving, prohibition from attending places frequented
by children, and prohibition from possessing firearms.
Case example:
An Ontario man was sentenced to 50 months in prison and banned from driving for seven years after being convicted of
1
impaired driving causing death. The offender had struck a man who was standing on his parents' front lawn.
Intermittent
sentence
A custodial sentence served on a "part-time" basis (generally weekends, from Friday evening until Monday morning) and
generally no more than 90 days in length.
Case example:
A North Vancouver, British Columbia, man received a 90-day intermittent sentence after pleading guilty to accessing child
pornography. The man was apprehended as part of an FBI undercover operation in which an undercover officer posed as a
person wanting to access child pornography. The police investigation revealed that the man had downloaded child pornography images from a file sharing network.g
1 Probation
The offender is placed under supervision in the community for a specified period of time (maximum three years), must
fulfill general conditions, and may be required to adhere to or complete specific conditions (e.g., attend alcohol or drug
counselling).
A South Porcupine Ontario Provincial Police officer was sentenced to 18 months' probation for defrauding the local chapter of
the Ontario Provincial Police Association of approximately $7,000. The officer had served as the treasurer for the association
for a number of years. An investigation found the officer had made 65 questionable transactions from the account for personal
items. The officer apologized to her family, friends, and colleagues in court. The court also required that the officer repay the
remaining portion of the money that was still outstanding. h
Case example:
Conditional
sentence
The offender receives a term of confinement (less than two years) and is allowed to serve it in the community under the
supervision of a probation officer, provided he or she meets certain specified conditions (although the offender is not on
probation and may be imprisoned for violation of conditions).
Case example:
A Peterborough, Ontario, man who defrauded the Quaker Oats Company of nearly $2 million was ordered to pay restitution
and given a conditional sentence of two years, less a day, to be followed by three years' probation. The former employee of
the company had set up fake corporations that billed the company for work that was never completed.i
Imprisonment
The offender is sentenced to a period of confinement-to a provincial institution if the sentence or sentences total two years
less a day, and to a federal correctional institution if the sentence or sentences total two years or more.
Case example:
A Montreal man was sentenced to five years in prison for his role in the theft of $18. 7 million of maple syrup. The syrup
had been stored in a warehouse that was partially owned by his wife and had been rented by the Federation of Quebec
Maple Syrup Producers. The man pleaded guilty to theft and trafficking after being apprehended selling the syrup on the
black market.i
I
j
I
I
• Western Star (Corner Brook, NL). 2016, November 23. "Fort McMurray Woman Given Absolute Discharge." http://www.thewesternstar.com/news/local/2016/11 /23/fort-mcmurray
-woman-given-absolute-disch-4691752.html.
b
S. Bruce. 2016, October 26. "Suspended Med Student Gets Conditional discharge on Weapons Offence," Local Xpress (Halifax).
c B. Fitzpatrick. 2016, December 1. "Man Receives Suspended Sentence after Groping Bus Passengers," Regina Leader-Post. http://leaderpost.com/news/crime/man-receives
-suspended-sentence-after-groping-bus-passengers.
K. Martin. 2016, November 3. "Couple Fined $12,000 for Failure to Care for 91 Pets in Filthy Home," Calgary Herald. http://calgaryherald.com/news/local-news/couple-fined
-12000-for-failure-to-care-for-91-pets-in-filthy-home.
• K. Bolan. 2012, December 12. "UN Gang Members Get 8and 1OYears in Cocaine Case, Minus Pre-Trial Credit," Vancouver Sun. http://vancouversun.com/news/staff-blogs/un
-gang-members-get-a-and-10-years-in-cocaine-case-minus-pre-trial-credit.
1 J. Sims. 2017, January 9. "'They Lost Their Son': Ontario Drunk Driver Gets Four-Years for Running Over Man Standing on His Parents' Lawn," National Post. http:l/news.nationalpost
.com/news/canada/ontario-drunk-driver-gets-four-years-for-running-over-man-standing-on-parents-lawn.
9 J. Seyd. 2016, June 3. "Child Porn Viewer Gets 90 Days in Jail," North Shore News.
h R. Grech. 2016, November 9. "Cops Gets 18 Months' Probation for $7,000 Fraud," Gaily Press (Timmins, ON). http://www.timminspress.com/2016/11/09/cop-gets
-18-months-probation-for-7000-fraud.
i J. Bain. 2016, January 5. "House Arrest for Man Who Defrauded Quaker," Peterborough Examiner. http://www.thepeterboroughexaminer.com/2016/01 I05/house-arrest-for
-man-who-defrauded-quaker.
i G.Hamilton. 2017,April 24. "Sweet Revenge for Quebec Maple Syrup Producers: Thief Gets Five Years for Role in $18.7Million Heist," National Post. http://nationalpost.com/news/
canada/sweet-revenge-for-quebec-maple-syrup-producers-thief-gets-five-years-for-role-in-18-7-million-heist.
d
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Part Ill: The Criminal Courts
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Suspended sentence
A sentencing option whereby the judge
convicts the accused but technically
gives no sentence and instead places
the offender on probation, which, if
successfully completed, results in no
sentence being given.
Intermittent sentence
A sentence that is served on a part-time
basis, generally on weekends.
Probation
A sentence imposed on an offender by a
criminal court judge that provides for the
supervision of the offender in the community by a probation officer, either as an
alternative to custody or in conjunction
with a period of incarceration in a provincial or territorial correctional institution.
Concurrent sentences
Sentences that are amalgamated and
served simultaneously.
Consecutive sentences
Sentences that run separately and are
completed one after the other.
Most of the sentencing options set out in Table 9.1 provide alternatives to confinement.
Some of these options may be combined; for example, the judge may impose a period of
probation of up to three years in conjunction with a sentence of two years less a day for
offenders in provincial/territorial systems, or they may impose fines along with probation or
a period of confinement. Alternatives to confinement are discussed in Chapter 10.
The large majority of people convicted of criminal offences are not sent to prison but
rather are placed under some form of supervision in the community, most frequently
probation (discussed in Chapter 10). This includes requiring the offender to participate
in some type of restorative justice program, including victim-offender mediation (discussed in Chapter 10).
For offenders convicted of multiple offences, tl1e judge may order that the sentences
be served either concurrently or consecutively. Concurrent sentences received by the
offender are merged into one sentence and served simultaneously. Thus, an offender
sentenced to two prison sentences of nine months each will serve a nine-month sentence (not an 18-month sentence). Consecutive sentences are served separately: one
begins after the other has expired. That is, an offender sentenced to two terms of nine
months each will serve 18 months. When deciding whether a sentence should be consecutive or concurrent, the court should consider (1 ) the timeframe of the offences,
(2) the similarity of the offences, (3) whether a new intent broached each offence, and
(4) whether the total sentence is fit and proper. Whetl1er a sentence is concurrent or
consecutive will affect tl1e offender's parole eligibility, as it will determine how long he
or she must serve before being able to apply for release. 1
Provisions in the Criminal Code state that all sentences are to be concurrent unless
the trial judge specifies tl1at they are to be consecutive. By contrast, sentences under
the Provincial Offences Act (R.S.O. 1990, c. P.33 ) are to be consecutive unless the sentencing judge specifies that they are to run concurrently. There are exceptions to this.
The Protecting Canadians by Ending Sentence Discounts for Multiple Murders Act (S.C.
2011 , c. 5), passed in 2011, allows judges to impose consecutive sentences to offenders
convicted of multiple murders. Previously, these sentences were served concurrently.
This occurred in tl1e case of Travis Baumgarb1er, who in 2013 received a 40-year
sentence after pleading guilty to killing three fellow security officers and critically
wounding another. 2 And in 2014, Justin Bourque received five life sentences with no
chance for parole for 75 years for killing three RCMP officers and wounding two other
officers in a shooting spree in Moncton , ew Brunswick. 3
VICTIM FINE SURCHARGE (VFS)
The VFS was introduced in 1989 as a way to provide funding for victim services.
Initially, judges were able to waive the surcharge if its imposition would impose undue
hardship on an offender. In 2013, as part of tl1e "get tough" approach to crime, the
then federal Conservative government made the penalty mandatory with the enactment of the Increasing Offenders' Accountability for Victims Act (S.C. 2013, c. 11 ). This
required judges to order the offender to pay a victim fine surcharge (VFS) equal to
15 percent of any fine . If there is no fine, an amount of up to $10,000 is set by tl1e judge.
Many judges attempted to bypass the legislation by sentencing offenders to one day in
jail and then counting attendance at court as "time served." In 2015, the BC Provincial
Court ruled in R. v. Barinecutt (2015 BCPC 189) that the imposition of a victim fine
surcharge on a homeless man violated his Charter rights, as it criminalized ilie man in
perpetuity, which would violate his rights to security and liberty under the Charter of
Rights and Freedoms. 4
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CHAPTER 9: Sentencing
251
There are two common misunderstandings about the VFS. First, the surcharge is
not a sentence in its own right and is always ordered in addition to another disposition.
Second, the money is not paid to the victim. It goes into a provincial fund to pay for
victim services. Some provinces also collect the VFS for provincial offences. The rate
of non-payment of VFSs is unknown, although it can be anticipated that for many
offenders, even a small amount may be beyond their means. It is possible for judges
to incarcerate offenders who are unable to pay the victim fine surcharge, a provision
which may significantly impact offenders in poverty.
ADDITIONAL SENTENCING OPTIONS
JUDICIAL DETERMINATION
Section 743.6 of the Criminal Code gives sentencing judges the authority to impose, on
some offenders receiving a sentence of imprisonment of two years or more, tl1e requirement
that an offender receiving a sentence of two or more years, serve one-half of the sentence
prior to being eligible for parole, instead of the typical one-third. The primary objectives of
this provision are protection of the public and specific and general deterrence.
Indigenous offenders are overrepresented in the group of offenders receiving judicial
determination. Offenders receiving judicial determination are more likely than other
offenders to serve their entire sentence in confinement.
JUDICIAL RESTRAINT ORDER
Judicial determination
AA order by the sentencing judge that
the offender serve one-half of their
sentence before being eligible to apply
for parole.
Under Section 810 of the Criminal Code, you may lay an information before a justice of
the peace (JP) if you have reasonable grounds to believe that another person will injure
you, your spouse, your children, or your property. TI1e person need not have a criminal
history at the ti me of tl1e application. Other sections-810.01(1 ), fear of a criminal
organization offence; 810.1 (1), fear of a sexual offence; and 810.2, fear of serious personal injury-require an information to be laid before a provincial court judge. Section
810 has withstood Charter challenges.
If the JP or tl1e judge is satisfied that tl1ere are reasonable grounds for the threat, the defendant is required to enter into a recognizance to keep the peace and be of good behaviour for
a period not to exceed 12 months. This is frequently referred to as a peace bond. 5
The court may also impose conditions on the defendant-for example, to abstain
from possessing a firearm , to avoid contact with persons under 14, or to stay away from
places frequented by children (s uch as school or daycare grounds). Violation of tl1e
conditions of an 8 10 order is an offence and can result in imprisonment. A defendant
can also be imprisoned for refusing to agree to an 810 order. Critics of section 810 argue
that the conditions are too broad in their application in that no crime need have been
committed in order for them to be imposed.
Section 810 orders can also be imposed by judges when an offender is released from
custody following the completion of his or her sentence (see Chapter 12).
LIFE IMPRISONMENT
Under the Criminal Code, persons convicted of murder are subject to life imprisonment. This means that the offender is under sentence for life, although he or she may
serve this sentence both in prison and upon release on parole in the community. The
Criminal Code sets out the minimum number of years that an offender must serve in
prison before being eligible to apply for release on parole. The key word is apply-tl1ere
is no guarantee that the parole board will grant a release.
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Part Ill: The Criminal Courts
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As part of its crime policy legislative agenda, the federal government in 2011 passed
the Protecting Canadians by Ending Sentence Discounts for Multiple Murders Act,
which permits a judge, in cases involving more than one murder, to add up parole
eligibility periods within a life sentence consecutively, rather than concurrently, as had
been past practice. In 2013, Travis Baumgartner, an armoured car guard who killed
four of his colleagues in an on-the-job robbery, made a plea deal that would give him a
life sentence witl1 no chance of parole for 40 years. Prior to tl1e legislation, Baumgartner
would have had to serve a maximum of 25 years prior to being eligible for parole.6
The death penalty was abolished by Parliament in 1976 and replaced with a mandatory life sentence without possibility of parole for 25 years in cases of first-degree
murder (although it was retained for a number of military offences, including treason
and mutiny). Until 1976, more than 700 persons had been put to death.
SENTENCING CONSIDERATIONS
Criminal court judges consider a wide range of factors in determining tl1e sentence to
be imposed on a convicted offender. Several of the more common factors are set out
in Table 9.2.
r
j,fs a mih'gating drrumstanct, may I say that
my cli~ntS getaway car was a hybrid•
Gender may also be a consideration in sentencing. Research studies have considered the influence of tl1e "chivalry factor" and the "evil woman" factor on the
sentences received by women offenders. The chivalry theory holds that women
offenders receive more lenient sentences than men offenders due to the perception that women are less threatening and dangerous, while the evil woman theory
holds that women offenders are likely to be more severely punished due to their
violation of gender norms and values. 7 Canadian research on sentencing women
is sparse; U.S. research has found that, historically, women tended to receive
more lenient sentences than men, but that in recent times it appears to be similar
to men .8 The increasing numbers of women, particularly Indigenous women, in
prison populations suggests tl1at tl1is trend is evident in Canada as well.
TABLE 9.2
SENTENCING CONSIDERATIONS
Aggravating factors
These are facts about an offender and the offence that are considered negative and tend to increase
the severity of a sentence (e.g., violence, violation of a position of authority).
Mitigating factors
These are facts about the offender and the offence that may decrease the severity of a sentence
(e.g., being Indigenous, being addicted).
Case law precedent
Judges will consider sentencing decisions in previous, similar cases. A general principle is that there
should be similar sentences in similar cases.
Pre-sentence reports (PSRs)
The PSR, prepared by probation officers, presents information on the offender's background, present
situation, and risk/needs. It also sets out options for sentencing that the judge will consider.
Victim impact statements
These contain information on the harm done to the victim (psychological and physical) as well as the
consequences of the victimization.
Psychological assessments
These are completed on offenders and address the mental state and treatment needs of the offender.
Indigenous offenders
Section 718.2(e) requires judges to consider alternatives to incarceration for Indigenous offenders.
Black offenders
Defence lawyers are increasingly asking for cultural assessments to be prepared on black offenders
prior to sentencing.
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CHAPTER 9: Sentencing
253
To reduce the numbers of women sentenced to confinement, it has been suggested that
sentencing guidelines could be developed for judges to ensure that judges exercise their
discretion in gender-sensitive ways. l11is would include considering the disproportionate
impact of incarceration on women, who are most often the primary caregiver for their children, and are often confined in institutions a considerable distance from their families and
friends, due to their small numbers. 9 These issues are discussed further in Chapter 11.
Given the broad discussion of judges in most cases, the extent to which any one of
these sources of information impact the judge's sentence will vary on a case-by-case
basis. Research indicates that judges do pay close attention to the materials contained
in the pre-sentence report. These reports are prepared by probation officers on adult
offenders who have been convicted. PSRs are prepared on the request of a sentencing
judge; they are not mandatory. The PSR contains a wealth of information on the
offender's background and offence history, as well as victim impact information and
assessments completed by treatment professionals.
For Indigenous offenders, there are special considerations that the PSR must address.
For example, it must include information on the offender's background and community, as well as on available community-based programs and services, including restorative justice programs such as sentencing circles and Elder-assisted interventions.
EXTRAORDINARY MEASURES: DANGEROUS
AND LONG-TERM OFFENDERS
There are two dispositions that are quite different from the sentences discussed so far
in that they are not time limited and are used only in the most serious and unusual
cases. These dispositions involve declaring offenders either dangerous offenders or
long-term offenders.
DANGEROUS OFFENDER (DO) DESIGNATION
Section 752 of the Criminal Code contains procedures and criteria for declaring
someone a "dangerous offender." That section defines a dangerous offender (DO) as
a person who is given an indeterminate sentence upon conviction for a particularly
violent crime and/or who has demonstrated a pattern of committing serious violent
offences. In the judgment of the court, the offender's behaviour is unlikely to be controlled or prevented by normal approaches to behavioural restraint. The purpose of the
section is to identify those persons with unacceptable propensities for violence and to
incapacitate them in order to protect the public interest.
Dangerous offender
A designation made by the judge after
conviction that results in an indeterminate term of imprisonment in a federal
correctional institution.
A person can be declared a DO by a sentencing judge only if the Crown makes a
formal application after conviction but before sentencing. The provincial attorney general must approve such an application beforehand. If the Crown proves the case, the
judge may order detention for an indeterminate period. If this happens, the offender is
detained in a federal prison, but there is no set length on the sentence. The offender
can be released by the Parole Board of Canada the following year, the following decade,
or never (see Chapter 12). These applications are rare, and there is a high burden of
proof on the Crown. Two elements are considered in making this determination: past
offence history, and the likelihood of serious offences in the future.
The first threshold is that the current offences of conviction must involve at least one
"serious personal injury offence" -that is, an indictable offence for which the possible
sentence is at least 10 years and which involved the use or attempted use of violence
against another person, or conduct endangering or likely to endanger the life or safety
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Part Ill: The Criminal Courts
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of another person, or conduct inAicting or likely to inAict severe psychological damage
on another person.
The second threshold involves past behaviour of the offender, which reAects a pattern of persistent, aggressive behaviour; a failure to control sexual impulses; and other
behaviour which indicates that the offenders ha~e difficulty controlling their behaviour.
This indeterminate sentencing option is unique in that judges are explicitly called
upon to predict, based on patterns of past behaviour, the likelihood of serious offences
in the future. Specifically, the Crown must prove (beyond a reasonable doubt) tliat tl1e
offender "constih1tes a tl1reat to the life, safety or physical or mental well-being of otl1er
persons ... " (Criminal Code, s. 753(l )(a)).
Expert witnesses are often called to help the court make tl1ese determinations. At
least two psychiatrists-one nominated by the defence, the other by the prosecutionmust testify. Other experts may be called, and the offender can call witnesses to testify
to his or her character and reputation.
There has been a steady increase in the number of offenders designated as clangerous.10 Of concern is the increase in the number of Indigenous offenders designated
as dangerous offenders, comprising 29 percent of this group of offenders in 2016. 11
Dangerous offenders present challenges to the criminal justice system clue to the
myriad factors that are associated witl1 their offending, including low levels of education, disturbed childhoods, psychopatl1y, and substance abuse problems. 12 A profile of
a dangerous offender is presented in Court File 9.1.
COURTFILE 9.1
LEO TESKEY: PROFILE OF A DANGEROUS OFFENDER
Leo Teskey is one of over 600 persons with
the dangerous offender designation. At a
young age, Teskey was exposed to drugs
and alcohol, physical and sexual abuse, and
the street life. A psychiatrist's report notes
that his first act of aggression as a child
was at age three when he attempted to hit
his father with a hammer. He had sexual
experiences by the age of four, skipped
school in Grade 1, and began using drugs
at age eight. Before he was 12, Teskey had
burned down his house, killing his uncle
who had been staying there. At age 15,
he was plied with drugs and alcohol by a
pedophile who sexually assaulted him. All of
these incidents occurred prior to the age of
18. What happened in his adult years is set
out in the timeline below.
Jan. 9, 1988: Just weeks before his 18th
birthday, Leo Teskey is in custody in the Leo Teskey
backseat of an Edmonton police cruiser
when he shoots Const. Michael Lakusta in the back of the head. Lakusta
survives and in 1989 Teskey is acquitted of attempted murder, but is
sentenced to three years and 10 months on charges of unlawful use of
a handgun while committing an indictable offence, and unlawful escape.
March 1992: Teskey is charged
with aggravated assault for abusing
his girlfriend's two-year-old son.
In 1994, the judge finds him guilty
of having caused bruises around
the toddler's eyes, forehead, and
back, as well as injuries to the
child's penis. The Crown seeks to
have Teskey declared a dangerous
offender, but the request is denied.
Teskey gets a six-month sentence
for the assault.
Nov. 21 , 2000: Landlord Dougald
Miller finds Leo Teskey asleep in the
hallway of his rental property at 9524
114 Ave. Miller tries to get Teskey to
leave, but is brutally assaulted and
ends up with severe brain damage.
Weeks later, a public plea by Miller's
wife, Lesley, prompts a phone call
from a tipster that leads investigators
to Teskey.
Feb. 22, 2002: Teskey is convicted of aggravated assault in the
beating of Miller, who remains in care and is unable to speak, eat,
or move. The Crown applies to have Teskey labelled a dangerous
offender.
(continued)
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CHAPTER 9: Sentencing
255
July 2003: Miller's wife, Lesley, speaks out about her struggle to
pay for her husband's care. One year later, the Alberta government
decides it will cover the cost of his long-term care for the duration
of his life, and the woman vows to continue fighting for further compensation for victims of crime and a change in laws around repeat
offenders.
August 201 0: Guards find cocaine and crack in Kinder-egg containers in his cell in the Edmonton Remand Centre. He is convicted
in March 2012 and has five years added to his indefinite sentence.
Feb. 28, 2005: Provincial court Judge Brad Kerby declares Teskey
a dangerous offender. With the designation, Teskey is locked up
indefinitely until the National Parole Board sees fit to let him rejoin
society. During the hearing, several psychiatrists label Teskey as a
psychopath who is likely to reoffend.
April 2016: Teskey's applications for day parole and full parole are
both denied by the Parole Board of Canada. He is eligible to apply
again in five years.
April 7, 2005: Demolition begins on the apartment building where
Teskey attacked Miller. Years earlier, Lesley Miller sold it to pay for
her husband's therapy and other costs. The property deteriorated
and became a hub for criminal activity before the decision was made
to tear it down
November 2005: Lesley Miller is awarded the Alberta Centennial
Medal by then Lieutenant-Governor Norman Kwong for her advocacy
work.
June 2006: The Alberta Court of Appeal upholds Teskey's conviction
in a 2-1 decision. The appeal, based on the lengthy delay in the
judge handing down his reasons for the verdict, is sent up to the
Supreme Court of Canada.
June 7, 2007: After hearing the application in February, Canada's
highest court grants Teskey a new trial, which begins in Edmonton
court Dec. 7, 2007.
Feb. 8, 2008: Teskey is found guilty of the assault on Miller for the
second time.
May 16, 2008: Lesley Miller meets with then Alberta Premier Ed
Stelmach as part of her continued petitioning of the government to
improve access to funds for victims of crime.
Feb. 4, 2009: Teskey's third dangerous offender hearing gets
underway. He is designated as a dangerous offender in June 201 O
and Teskey is once again imprisoned indefinitely.
Sept. 10, 2014: Teskey's appeal of his dangerous offender designation is dismissed in a unanimous decision by the Alberta Court of
Appeal.
Sept. 24, 2016: Miller dies, nearly 16 years after the attack. Teskey
is not charged for the death.
May 2017: Teskey is 46 and, while he is eligible to apply for release
in 2021, will remain in custody in a federal correctional institution
unless he can convince the Parole Board of Canada that he is no
longer a danger to society.
All of the psychological assessments conducted on Teskey identified
him as a highly intelligent psychopath. There have been extensive
online comments on Teskey's case, and while the majority of the comments are critical of the justice system, others raise issues related to
his childhood. These two views are reflected in the following comments:
This man's file is yet another piece of evidence that our
system is far too lenient on criminal filth. We must prioritize
public safety over rehabilitation and reintegration.
He should have had counselling and rehabilitation services
at a young age. This was a person who was at first and
victim himself. Not everyone is able to move past such horrible atrocities committed on them as children. Very sad.
I'm not sure why being a victim of sexual, or other abuse, is
a mitigating factor in adult behaviour. Indeed it is not fair, it
is terrible ... but it is not an excuse to abuse others.
Source: P. Parsons. 2016, October 1. "Leo Teskey's Path to Dangerous Offender
Status," Edmonton Journal, http://edmontonjournal.com/news/crime/leo-teskeys-path
-to-dangerous-offender-status-after-beating-landlord-into-coma. Material republished
with the express permission of Postmedia Network Inc.
LONG-TERM OFFENDER (LTO) DESIGNATION
Section 75 3 of the Criminal Code contains provisions for declaring someone a longterm offender (LTO). Crown counsel may use this option when the case falls short of
the stringent criteria for filing a DO application. As with dangerous offenders, evidence
must be presented to indicate that there is substantial risk that the offender will commit
a serious personal offence after release from prison.
The designation is available only for those offenders who have received a sentence
of more than two years. At sentencing, the judge sets the length of the long-term supervision order. This means that after the sentence ends (which includes confinement
and post-release supervision), the long-term supervision order comes into effect. This
order requires that the offender be supervised by a parole officer for the remaining
period of the order, which may be up to 10 years. The Parole Board of Canada sets the
256
Part Ill: The Criminal Courts
Long-term offender
A designation under section 752 or 753
of the Criminal Code that requires the
offender to spend up to 1Oyears under
supervision following the expiry of his or
her sentence.
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COURT FILE 9.2
PROFILE OF A LONG-TERM OFFENDER
On September 16, 2009, Ross Garland kidnapped a woman at the Halifax airport, jumping into
her car after she had dropped off a friend. Garland made the victim stop and withdraw money
from ATMs. The victim escaped while he was attempting to force her into the trunk. He was later
apprehended. Garland had a lengthy criminal record dating back 30 years, including robbery with
a weapon and assault causing bodily harm. Associated with his criminality was a long history of
substance abuse. During the long-term offender hearing, the presiding judge noted that Garland's
substance abuse issue were "very serious and very unrelenting. •a The judge also noted that he
had been unresponsive to treatment in previous prison terms. The judge sentenced Garland to
eight years in prison, followed by eight years of supervision, noting that it would be "disastrous for
both Mr. Garland and the community if he were to be released into the community without supervision. "b At the hearing, the kidnapping victim told Mr. Garland that she forgave him and Garland
apologized to her.
a,b D. Jeffrey. 2013, April 15. "Kidnapper Declared a Long-Term Offender," Halifax Chronicle Herald.
http://thechronicleherald.ca/metro/1123521-kidnapper-declared-long-term-offender.
conditions under which the offender will be supervised following the expiration of his
or her sentence.
The long-term offender designation, designed to deal with specific sexual offences,
is another option for Crown counsel, particularly in cases in which the Crown falls
short of the rigid requirements or level of evidence to file a dangerous offender application. As with dangerous offenders, there must be evidence that the offender presents
a substantial risk of reoffending by committing a serious personal offence. However,
there must also be risk assessment evidence demonstrating that the offender may be
effectively managed in the community with appropriate supervision and treatment. 13 A
profile of a long-term offender is presented in Court File 9 .2.
There are differences between the designation of long-term offender (LTO) and
long-term supervision orders (LTSO). The LTO designation is imposed by the sentencing judge and is the actual sentence of the court under section 753.1 of the
Criminal Code. An LTSO refers to the administration of the sentence and is the
responsibility of the Parole Board of Canada under the Corrections and Conditional
Release Act (S.C. 1992, c. 20).
SENTENCING IN A DIVERSE SOCIETY
In Chapter 1, it was noted that the application of the criminal law is challenging in
a diverse society where visible and cultural minority groups are a growing portion of
the population. If found guilty, judges are confronted with how to determine the most
appropriate sentence for the offender.
A key issue related to diversity is whether the cultural practices of a person's country
of origin should be considered a mitigating factor in determining the sentence for
an offender whose crime was committed in Canada. There may be practices and
behaviour that are permitted, or at least not sanctioned, in other countries that are a
violation of the Criminal Code in Canada. This issue arose in the case presented in
Legal File 9.1.
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257
LEGAL FILE 9.1
R. V. H.E.: SENTENCING AND CULTURAL PRACTICES
An Iranian man had been convicted of repeated sexual and physical assaults of his wife and of
their children during a three-year period after the family had arrived from Iran. The trial judge sentenced the man to 18 months in a provincial correctional institution, citing a number of mitigating
circumstances, including difference in culture between Iran and Canada with respect to sexual and
physical assaults in the family.
On appeal, the appellant court judge found the sentence of 18 months to be "manifestly
unfit" and increased the sentence to four years in prison. In imposing the increased sentence, the
appeals court judge stated, "Cultural norms that condone or tolerate conduct contrary to Canadian
law must not be considered a mitigating factor on sentencing. A cultural practice that is criminal in
Canada does not mitigate the perpetrator's conduct for sentencing purposes. Cultural differences
do not excuse or mitigate criminal conduct" (R. v. H.E., 2015 ONCA 531).
SENTENCING INDIGENOUS OFFENDERS
In 1996, section 718.2(e) was added to the Criminal Code. It states, "[A] ll available
sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all
offenders, with particular attention to the circumstances of Aboriginal offenders." The
intent of this amendment was to have judges consider alternative sentencing options
for Indigenous offenders who would otherwise be sent to prison and thereby reduce the
overrepresen tation of Indigenous peoples in prison.
In a decision in 1999, the SCC affirmed this principle in R. v. Gladue ([1999) l SCR
688). Jannie Tanis Gladue had pied guilty to stabbing her partner to death, but the SCC
held that Indigenous persons may have "unique systemic or background factors" that must
be considered in determining the sentence whenever the person's freedom is in question,
such as cases in which a term of incarceration would normally be imposed by the court.
In particular, courts are required to give special consideration to the background and life
circumstances of Indigenous offenders and to consider a range of sentencing options.
Judges must be mindful of imposing "culturally inappropriate" sentences.
These concerns are also to be considered at other stages of the criminal justice
process where the offender's liberty is at stake, including parole board hearings. The
Gladue principle applies at bail hearings, sentencing, parole eligibility, dangerous
offender application hearings, and other decision-making points where the liberty of an
Indigenous offender is at stake. 14
A Gladue report may be requested by the defence counsel, Crown prosecutor, or the
presiding judge at the pre-sentencing or bail hearing stage of the criminal court process.
The report is prepared by specially trained persons who gather information on the accused's
personal history, including residential school experience, contact with child welfare authorities, physical or sexual abuse, health issues, and other personal and traumatic events in the
Indigenous person's life that may be associated with his or her conflict with the law. 15
In the words of a Gladue report writer, 'The Gladue report is not meant to secure
a reduced sentence. The purpose is to provide the court with a real understanding of
what the individual has been through in their lives." 16
Gladue report
A report prepared prior to sentencing
of Indigenous offenders which sets out
historical events and that may be related
to the offender's conflict with the law
and criminal behaviour.
To illustrate, the following is an excerpt from a Gladue report, which associates an
offender's charge of assault with a weapon while intoxicated with the loss of his cultural heritage:
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Part Ill: The Criminal Courts
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Mr. M. lived a fairly traditional and semi-nomadic lifestyle for about the first six years
of his life. After the age of six, living on the land became problematic because of the
intrusion of Canadian law into the lives of the Inuit. ..
.. . . [A] kaleidoscope of debilitating social and mental health problems result[ed]
from a traumatic change in a way of life ....
Alcoholism is often cited as a response to, and an escape from , the physical and
psychological stresses of relocation and the depressing sense of loss and powerlessness among relocates. At Easterville, for example, alcoholism became a major problem after relocation. 17
Gladue decision
A decision by the sec which held that
in cases where a term of incarceration
would normally be imposed, judges
must consider the unique circumstances
of Indigenous people.
Specifically, section 718.2(e) requires judges to consider (1) the unique systemic or
background factors that may have contributed to the criminal behaviour of the Indigenous
person before the court, and (2) specific sentencing procedures and sanctions (including
restorative justice and traditional healing practices) that may be more appropriate for the
individual Indigenous offender. This includes taking into consideration colonialism, residential schools, and the marginality oflndigenous persons in Canadian society.
The Gladue decision was confirmed by the Supreme Court of Canada in R. v. I pee lee
(2012 SCC 13). See Critical Thinking Exercise 9.3 at the end of this chapter. In 2012,
the Ontario Appeal Court ruled that two Indigenous men arrested for drug smuggling
at the U.S . border should not be extradited to the U.S. where their Indigenous heritage
would not be considered at sentencing, as required in Canada. 18
An example of how the criminal history of an Indigenous person found guilty in a
Gladue court is reframed at the sentencing stage is illustrated in the following exchange:
[Duty counsel ]: She is 29 years old. She is First ations. She is the first born of an
alcohol and crack addicted mother. She suffered a litany of abuse-physical, sexual
and then was placed into foster care where again she was physically and sexually
abused. [... ] She has a long criminal record but she has also been victimized and
re-victimized throughout her life. Her problems are so deep and longstanding.
[Judge]: The Crown is seeking a substantial sentence based on a very long record .
I've considered your plea, what you have had to deal with in your life ... I think time
serviced is appropriate. I will suspend the sentence and place you on probation for
6 months. 19
A case involving a Gladue report is presented in Legal File 9.2.
LEGAL FILE 9.2
R. V. KREKO
On May 5, 2012, Andrew Kreko robbed Jason Gomes at gunpoint of his
necklace and cellphone. Kreko fled on foot, but was pursued by Gomes
in his vehicle. Kreko was hit by the car and then fired four shots, one of
which grazed Gomme's head, causing a minor injury, and another which
entered Kreko's own leg, resulting in a serious injury.
Kreko pleaded guilty to possession without lawful excuse of a
loaded prohibited firearm, robbery with a handgun, and intentional
discharge of a firearm while being reckless as to the life or safety of
another person. The trial judge sentenced him to 13 years in prison in
2014. Although a Gladue report had been prepared and submitted to
the judge to consider prior to sentencing, the judge concluded, as he
would later state, that "It appeared to me that his Aboriginal connection
had been irrelevant to his offences, or how he got there. "a
The Ontario Court of Appeal (R. v. Kreko, 2016 ONCA 367)
subsequently reduced Kreko's sentence to nine years in prison. In its
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decision, the trial court judge erred in concluding that there was no
link between Kreko's Indigenous background and the offences that
he committed. The appeal court noted that Kreko's mother had come
from a family where there had been alcohol abuse and had given birth
to Andrew when she was 15 years old and in the care of the province.
He was subsequently placed in foster care and adopted at age two by
a non-Indigenous family. His adoptive mother left the family soon after.
Andrew's adoptive father told him about his Indigenous heritage and
that he was adopted when he was in his late teens, which, the appeal
court noted, "came as a shock to him, and the realization of the loss
of both his adoptive mother and his birth mother led to feelings of
abandonment, resentment and a sense that he was unwanted."
• J. Gallant. 2016, May 24. "Court Erred in Sentencing Aboriginal Man, Court of Appeal
Rules," Toronto Star. https://www.lhestar.com/news/gta/2016/05/24/court-erred-in
-sentencing-aboriginal-man-court-of-appeal-rules.html.
CHAPTER 9: Sentencing
259
A number of issues surround the Gladue principles. There are, however, limits in the
extent to which sentencing provisions such as Gladue can address the social, political,
and economic factors that contribute to the marginalization of Indigenous and ethno20
cultural groups and their disproportionate contact with the criminal justice system.
Indigenous women's groups have expressed concerns about alternative models of
justice, particularly in cases of violence against women. 21 Among the arguments are
that culture-based community justice models do not address the multifaceted issue of
violence against women, nor the over-incarceration of Indigenous offenders. 22 There
are concerns that the voices of Indigenous women are not being heard in discussions
surrounding the use of sentencing circles in communities.
Questions have been raised as to the extent to which the courts are following the
requirements of section 7 18.2(e) and its effectiveness in addressing Indigenous overrepresentation in prisons. Since the creation of section 718.2(e), the number oflndigenous
persons in prison has more doubled, increasing from 11 percent to nearly 25 percent. 23
In addition, there is some concern as to the availability and quality of training for justice
officials, including judges, across the country. 24 See At Issue 9.1.
Judges are not obligated to follow the recommendations set forth in Gladue reports .
In one case, the court rejected the argument made by the defence that their client
should receive a lenient sentence after being convicted of sexual assault since he was a
residential school survivor. The crimes involved several girls who were under the age
of 14. The defence had asked for a sentence of less than two years in confinement,
AT ISSUE 9.1
IS SECTION 718.2(E) AN EFFECTIVE STRATEGY TO REDUCE THE OVERREPRESENTATION
OF INDIGENOUS PERSONS IN PRISON POPULATIONS?
Supporters argue that section 718.2(e) represents enlightened sentencing policy and is only one component of a wider effort to address
the overrepresentation of Indigenous people in the criminal justice
system and in correctional institutions. Supporters also argue that
the section requires only that judges consider sanctions other than
confinement when sentencing Indigenous offenders. Critics counter
that special sentencing provisions for Indigenous people discriminate
against non-Indigenous offenders and are based on the faulty assumption that it is sentencing practices, rather than complex historical and
contemporary factors, that are the primary reason for the high rates
of Indigenous incarceration. To these observers, it is disconcerting
that, despite initiatives and legislation, such as the Gladue decision,
Indigenous persons continue to be overrepresented in the justice
system and in corrections, proportionate to their numbers in the
general Canadian population. And this representation has steadily
increased over the past decade. In support of this view, research is
cited which has found that various sentencing reforms in Australia
and New Zealand have also not reduced the overrepresentation of
Indigenous people in prison.•
Research studies have found that section 718.2(e) is applied
inconsistently by judges across the country and that, for a variety of
reasons, judges' discretion may be limited in cases where Indigenous
men and women have been convicted of violent offences.b There
have been several court decisions where judges have ruled that the
260
Part Ill: The Criminal Courts
circumstances of the offences (primarily involving violence) and the
accused's prior record and other background factors required that
the principles of deterrence and denunciation take precedence over
rehabilitation (R. v. L.D.W, [2005] 215 BCAC 64; R. v. Kakekagamick,
[2006] 211 CCC 289).c As well, Indigenous women's organizations
have expressed concern that the legislation has negative implications
for women who are sexually assaulted in their communities, with men
receiving non-carceral sentences. d
QUESTION
1. What other arguments might be made in support of, or in opposition
to, section 718.2(e)? Which of these do you find most persuasive?
• S. Jeffries and P. Stenning. 2014. "Sentencing Aboriginal Offenders: Law, Policy, and
Practice in Three Countries," Canadian Journal of Crime and Criminal Justice, 56(4),
447--494.
b G. Balfour. 2013. "Do Law Reforms Matter? Exploring the Victimization-
Criminalization Continuum in the Sentencing of Aboriginal Women in Canada. "
International Review of Victimology, 1~1 ), 85-102.
' B.R. Pfefferle. 2008. ' Gladue Sentencing: Uneasy Answers to the Hard Problem of
Aboriginal Over-Incarceration," Manitoba Law Journal, 32, 113-143.
d Balfour, "Do Law Reforms Matter?"
Additional source: P. Stenning, C. LaPrairie, and J.V. Roberts. 2001 . "Empty Promises:
Parliament, the Supreme Court, and the Sentencing of Aboriginal Offenders,"
Saskatchewan Law Review, 64(1 ), 137-168.
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followed by community service, while the Crown had recommended a seven-year
prison term. In sentencing the defendant to six years in prison, the judge acknowledged
that he had been the victim of sexual abuse while in a residential school, but noted that
the seriousness of the crime required a lengthy prison sentence. The judge also stated
that the victims as well had suffered due to their Indigenous status. 25
These types of cases place judges in a difficult position: on the one hand weighing
the issues of systemic racism and the experience of Indigenous persons, while at the
same time ensuring that a sentence is proportional and addresses the needs of victims
and the community.
INDIGENOUS TRADITIONAL PUNISHMENTS
A key theme in this text is the increasing role of First ations communities in the
criminal justice process. This includes the use of traditional punishments in addition
to those imposed by the criminal justice system or even in cases where the accused was
not prosecuted. The Blood Tribe Indian reserve in Alberta, for example, has banished
community members involved in committing sex crimes against children and gang
members who had been imprisoned for a killing. The band also banished a member
who was allegedly robbing gravesites of weapons and beads. Although this person was
never charged by the police, the community decided that he should not remain in the
community. 26 on-Indigenous offenders have also been banished by the courts, which
has generated considerable controversy. See At Issue 9.2.
Persons who are banished from a First ations reserve may be required to complete a
number of conditions, including attending treatment, doing community service, being
mentored by an Elder, and remaining crime-free. There may also be a requirement
that the offender appear before the community and apologize. The view is that these
traditional sanctions are more effective than the "western" justice system. 27
In other cases, the court may postpone sentencing while the offender participates
in a traditional Indigenous healing program. This occurred in 2017 in the case of a
couple from the Blood Tribe in Alberta who had pied guilty to the crime of failing
to provide the necessities of life to their nine-year-old daughter who nearly died
from neglect. The court postponed sentencing while the couple participated in the
Kainai Peacemaking Centre. The program focuses on restoring personal, family, and
AT ISSUE 9.2
SHOULD BANISHMENT BE USED AS A SENTENCING OPTION?
In July 2017, Gordie Bishop was sentenced to time served (825 days in jaiQ and banished from the
province of Newfoundland and Labrador as part of a probation order. Bishop, who had a 27-page criminal record, had been convicted of aggravated assault of a peace officer, assaulting a police officer with
a weapon, break and enter, and other charges relating to an incident. This was in addition to a conviction
for six other offences related to the same incident in which a police officer was dragged by a getaway
car that Bishop was driving. Bishop must remain out of the province during the time he is on probation.
QUESTIONS
1. What is your view of the use of banishment as a component of a sentence?
2. Should banishment be used for both Indigenous and non-Indigenous offenders?
3. What issues might arise with the use of banishment?
Source: CBC News. 2017, July 11. "Gordie Bishop Exiled from the Province for Dragging Cop with Getaway Car." http://
www.cbc.ca/news/canada/newfoundland-labrador/gordie-bishop-banishment-order-mc-peter-eastons-1 .4199640.
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CHAPTER 9: Sentencing
261
community relationships. The Kainai Peacemakers are Elders from the tribe who offer
guidance to program participants. 28 A Gladue pre-sentencing report stated, "These
people are good people and they care about their children." 29
SENTENCING AND RACE
The race of the accused person and its role in sentencing is becoming increasingly
important. In 2003, the Ontario Court of Appeal ruled in the case of R. v. Borde (63 OR
(3d) 417) that trial judges can, in appropriate cases, take into account systemic racism
as a mitigating factor in sentencing young black offenders who have been convicted of
less serious crimes.
In 2016, in the case ofR. v. Reid (20 16 0 SC 954), an Ontario judge spared a young
Black man jail time and imposed a conditional sentence, requiring the man to serve
two years under house arrest and attend counselling. The man had been arrested by
police for running a dial-a-dope operation and subsequently pied guilty to three counts
of trafficking crack cocaine and one count of possession of the proceeds of crime. In
sparing the man jail time (the Crown prosecutor had asked for a sentence of one year in
jail), the judge cited the case of R. v. Nur (20 11 0 SC 4874) which held that anti-Black
discrimination played a role in the disproportionate number of Blacks in prison, and
also noted that, while Blacks comprised 2.9 percent of the Canadian population, they
accounted for 9.8 percent of the total prison population. The judge also cited a number
of traumatic experiences in the man's background and the pre-sentence report, which
indicated that Mr. Reid had taken a number of positive steps to turn his life around.
The issue of the extent to which cultural assessments should be considered in sentencing
was a key element in the case of Kale Leonard Gabriel, presented in Legal File 9.3.
Conditional sentence
(of imprisonment)
A sentence for offenders who receive a
sentence or sentences totalling less than
two years whereby the offender serves
his or her time in the community under
the supervision of a probation officer.
LEGAL FILE 9.3
R. V. GABRIEL: THE ROLE OF CULTURAL ASSESSMENTS IN SENTENCING
In 2016, a jury in Nova Scotia found Kale Leonard Gabriel guilty of
second-degree murder in the shooting death of Ryan White in Muigrave Park in north-end Halifax. Gabriel, who is part Black, had killed
White in a dispute over drug turf. The conviction carried an automatic
penalty of life in prison, although the judge has discretion in determining when Gabriel would be eligible to apply for parole.
The range for parole eligibility is from 10 to 25 years. Crown
counsel requested that the eligibility for parole be set at 15 years,
while defence argued that Gabriel should be eligible for parole after
serving 10 years. A key issue was whether the history of discrimination
against Blacks in Nova Scotia should be a mitigating circumstance
in determining the length of time Gabriel should serve before being
eligible for parole.
The judge reserved the decision for several months, indicating that
a cultural assessment was required as well as an assessment of other
factors in Gabriel's background that might be related to his offending.
The final decision was that Gabriel would serve 13 years before being
eligible for parole, the judge stating, "A period of parole eligibility for
10 years would not be enough to denounce this crime, punish the
offender and deter those who see disadvantaged communities like
Mu lg rave Park as their turf. "a In his reasons for the decision, the judge
did acknowledge that the cultural assessment revealed that Gabriel's
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Part Ill: The Criminal Courts
background and environment as a Black man did influence his choices,
although he noted that Gabriel's mother had played an active and
positive role in his upbringing. In this case, the judge concluded that
the seriousness of the crime was not mitigated by Gabriel's experience
as an African-Nova Scotian (R. v. Gabriel, 2017 NSSC 90).
Although the history of discrimination against Blacks in Nova
Scotia and Gabriel's background were determined by the judge in this
case not to be mitigating circumstances, the use of cultural assessments for visible minorities may become more common in the criminal
courts. Victims' families, on the other hand, have expressed concerns
that cultural assessments diminish the responsibility of the offender. b
For a discussion of the case, listen to, from CBC's The Current,
"Black Canadians Need Pre-Sentencing Cultural Assessments, Says
Lawyer," http://www.cbc.ca/radio/popup/audio/listen.html?autoPlay
=true&medialds=2689837 423.
• B. Rhodes. 2017, March 29. "Kale Gabriel Gets Life Sentence for Murder of Ryan
White," CBC News. http://www.cbc.ca/news/canada/nova-scotia/kale-gabriel-ryan
-white-murder-sentence-halifax-1.4046493.
b D. Quan. 2017, April 25. "Consider Impact of Systemic Racism before Sentencing
Black Offenders, Canadian Judges Urged," National Post. http://news.nationalpost
.com/news/canada/consider-impact-of-systemic-racism-before-sentencing-black
-offenders-canadian-judges-urged.
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Despite the overrepresentation of African-Canadians in prison populations, the
courts generally have been reluctant to extend the Gladue principles to other racialized groups. In R. v. Hamilton ((2004] OJ o. 3252), the presiding judge reduced the
sentences of two women who had pied guilty to trafficking cocaine into Canada from
Jamaica. The judge's reasoning was that Black Canadians had been the victims of historic racism not dissimilar to that experienced by Indigenous peoples, and therefore, the
sentencing principles of section 718.2( e) should apply. More specifically in this case, the
presiding judge found that the respondents should receive conditional sentences rather
than incarceration due to their being subjected to systemic racism and gender bias. As
well, their poverty made them vulnerable to becoming involved as cocaine couriers.
The Ontario Court of Appeal, however, criticized the judge's ruling, noting that sentencing in the criminal courts is not the place "to right perceived societal wrongs" or
"make up for perceived social injustices by the imposition of sentences that do not
reflect the seriousness of the crime." While finding the conditional sentences inadequate, the appeals court concluded that little would be accomplished by sending the
women to prison, given they had already spent over a year under house arrest due the
conditional sentences.
HOW DO JUDGES DECIDE?
Sentencing is a very human process. Most attempts to describe the proper judicial
approach to sentencing are as close to the actual process as a paint-by-numbers landscape is to the real thing-Ontario Court of Appeal Judge David Doherty in R. v.
Hamilton (2004 ONCA 5549 at para. 87)
Sentencing is among the most difficult tasks that judges have to perform, and probably
the most controversial. It has been described as a "delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the
offender and the circumstances of the offence, while at all times taking into account
the needs and current conditions of and in the community" (R. v. M. (C.A.), [1996] 1
SCR 500, at 566).
Controversy often surrounds sentencing because Canada is a diverse and open
society that encompasses a broad range of religious, social, cultural, and moral values
and views; thus, Canadians have widely disparate opinions on what constitutes a fit
penalty for a particular offence.
There are three important steps in the decision-making of trial judges: ( 1) identifying
the relevant factors in the case; (2) identifying the relevant law; and (3) combining the
relevant facts and the law to produce the correct outcome. 30 Judges may experience difficulties in carrying out these activities: Expert witnesses may provide conflicting testimony; defence lawyers may attempt to obscure the facts in an attempt to gain advantage
for their clients; and key wib1esses may be unable to recollect the events that occurred,
particularly if the incident occurred yea rs previous. As noted, court decisions have also
held that judges must consider the unique circumstances of Indigenous offenders, and
there is an increasing awareness that cultural assessments may be required for Blacks at
the sentencing stage.
JUDICIAL DISCRETION
Canadian judges have considerable discretion in selecting a sentence. Section 718.3(1)
of the Criminal Code states: "Where an enactment prescribes different degrees or kinds
of punishment in respect of an offence, the punishment to be imposed is, subject to the
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CHAPTER 9: Sentencing
263
limitations prescribed in the enactment, in the discretion of the court that convicts a
person who commits the offence."
In making a sentencing decision , a judge may sometimes seek to impose a sentence
that not only fits the crime and reflects the "going rate" for similar offences, but also
takes into account the offender's particular circumstances. In other cases, the sentence
may reflect only the severity of the crime, with no consideration to th e situation of the
offender. In still other cases, judges are confronted with difficult issues that generate
considerable media attention and public and political debate. Recall from Chapter 2
that there are high levels of public dissatisfaction with the criminal courts, centring primarily on what Canadians perceive as overly lenient sentences imposed on
the convicted.
Judges exercise considerable discretion in making sentencing decisions, and this may
result in non-legal factors playing a role in their decision-making and contributing to
sentencing disparity. Sentencing disparity involves "different sentences being meted
out for similar offences committed by similar offenders in similar circumstances." 31
For most offences, judges have wide latitude in deciding on a sentence, and this
results in variability in sentencing decisions across the country. There is, for example,
considerable variation across the country with respect to the use of imprisonment.
In 2011-12, for example, nearly 70 percent of convictions in Prince Edward Island
resulted in a sentence of imprisonment (the majority for impaired driving), compared
to 30 percent in Saskatchewan and just under 40 percent in British Columbia. 32 While
a number of factors contribute to this va riability (e.g., the specific mix of offences that
are presented to judges), there does appear to be different approaches to the use of
imprisonment across the country.
What is generally not considered by Crown, defence lawyers, and judges are the
collateral consequences of sentencing. These are the sanctions and prohibitions that
are placed on persons who have been convicted of a criminal offence and their families,
in offenders who have been incarcerated).33
In many U.S. states, convicted felons are prohibited from accessing student loan
programs, cannot be employed in certain types of businesses, may have their criminal record uploaded to the Internet, and may not be eligible to apply for government
contracts. Collateral consequences also include the impact of a conviction and/or a
particular sentence on the offender's family (see Chapters 11 and 12). All of these may
hinder the offender's efforts at rehabilitation and, for those offenders in confinement,
re-entry into the community.
Sentencing disparity
Different sentences being meted out for
similar offences committed by similar
offenders in similar circumstances.
Collateral consequences
(of sentencing)
The sanctions and prohibitions that are
placed on persons convicted of criminal
offences (and their families), particularly those offenders who have been
incarcerated.
The failure of the criminal justice system to consider collateral consequences may
undermine its effectiveness. Many restorative justice approaches, on the other hand ,
consider these types of consequences and may be more effective in fashioning sa nctions
that produce pos itive outcomes (see Chapter 13).
There is evidence that the personal attributes of judges may influence their decision-making. The political party that appointed the judge, the region of the country in
which the judge practises, and the gender of the judge have all been found to influence
decisions. Judges in Ontario and in the western regions of the country tend to be more
liberal in their decision-making. 34 Similarly, female judges have been found to vote
differently than male judges in some regions, with one study of the Alberta Court of
Appeal finding that female judges tended to more often support the complainant in
cases involving sexual and domestic violence. 35 A Canadian study found that men who
murder their wives, girlfriends, or other women family members are more likely to be
convicted of the crime than men who kill strangers. However, these men also tended to
receive shorter prison sentences than men who killed strangers. 36
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Part Ill: The Criminal Courts
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In contrast to other Commonwealth jurisdictions such as England and Wales that
have developed more struch1red sentencing guidelines, Canada's judges have considerable discretion in sentencing.37 That said, judges must be careful to balance their
personal views with their mandated role.
Judges may experience challenges in balancing their personal conscience-that is,
their own sense of justice, with judicial conscience, wh ich is their duty as a judge.38
There are cases in which a judge's personal conscience has resulted in the sentencing
decision being overturned and a new trial ordered.
In one Ontario case, the Ontario Court of Appeal determined that the trial judge
used insulting language toward a man accused of sexual assault, including accusing the
defendant of staging a "dramatic and insincere" crying outburst in the witness box, and
"let his personal feelings" about the man "overtake his objectivity." 39 The trial judge
had also described the victim's mother as "utterl y despicable in my view and a totally
unbelievable witness." The Court of Appeal held that the presiding judge allowed his
personal feelings about the defendant and his mother to compromise his objectivity. 40
In another instance, concerns have been raised about a particular judge in the
Ontario Court of Appeal , whose written decisions read like a crime novel. In one case
involving murder, the judge wrote, "Handguns and drug deals are frequent companions, but not good friends. Ri p-offs happen. Shootings do too. Caveat emptor. Caveat
venditor (let the buyer beware; let the seller beware). People get hurt. People get killed.
Sometimes the buyer. Other times, the seller. That happened here." 41 In the view of the
judge's critics, judicial rulings should be more solemn.
STATUTORY GUIDANCE
Increasingly in recent years, judges looking for guidance in sentencing can find direction from Parliament in some statutes. However, section 718 of the Criminal Code,
reproduced earlier in the chapter, is merely a list of the sentencing rationales typically
presented in textbooks such as this one. The fundamental principle of sentencing, as
stated in section 718.1 of the Criminal Code, is that of proportionality: A sentence
must be proportionate to the gravity of the offence and to the degree of responsibility
of the offender.
In what may well be the beginning of a trend, Parliament has specified factors that
judges should consider when sentencing drug cases under the Controlled Drugs and
Substances Act (S.C. 1996, c. 19). According to section 10(2) of that Act, an offender
may deserve a harsher sentence when he or she carried, used, or threatened to use a
weapon; used or threatened to use violence; trafficked in one of the specified substances,
or possessed such a substance for the purposes of trafficking, in or near a school, on or
near school grounds, or in or near any other public place usually frequented by people
under 18; or trafficked one of the specified substances, or possessed such a substance
for the purpose of trafficking, to a person under 18. These provisions join the principles
and purposes of sentencing set out in section 718 of the Criminal Code and indicate
that Parliament is willing to give sentencing judges some guidance by designating certain types of crime as deserving of greater punishment.
MAXIMUM SENTENCES
Every offence has a maximum sentence that a judge cannot exceed. However, these
maximums are so high as to provide little practical guidance. For example, life imprisonment is the maximum sentence for manslaughter. Life imprisonment is also a
possible (but not probable) sentence for offences such as piracy (s. 74), breaking and
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CHAPTER 9: Sentencing
265
a man who had killed his son in an unprovoked attack to two yea rs less a day in a provincial jail, "Two f-ing yea rs-that's f-ing ridiculous." 45 While there are concerns
that victims may have unrealistic expectations as to the impact of their statement on
the sentence that is imposed, it is generally accepted that the benefits of having victim
input at the sentencing state outweigh any potential drawbacks. 46
While the adversarial system of criminal justice may result in victims feeling revictimized or dissatisfied with the process and the sentence, restorative justice often
results in different outcomes. Victims are part of, rather than ancillary to, the process,
and this is discussed later in the chapter.
VICTIM IMPACT STATEMENTS
Section 722.1 of the Criminal Code provides that, at the sentencing stage, a crime
victim can submit to the court a victim impact statement (VIS) explaining his or her
personal/emotional reaction to being victimized, any physical injuries caused by the
victimization, and the financial impact of the victimization. There are no limitations on
the kinds of offences for which a VIS can be submitted. However, it is most commonly
used for crimes against the person.
A VIS can take the form of a letter to the judge. Many provinces distribute standard
forms, which typically ask the victim to itemize physical injuries and any permanent
disability, as well as the dollar value of financial losses, such as property loss or damage,
lost wages, or medical expenses not covered by insurance. There is also space to express
personal reactions to the crime, including any need for counselling. At the discretion
of the judge, victims may read their VIS aloud in court or testify about the impact of
the crime; they are not allowed to request specific penalties or directly address the issue
of sentencing. Despite this, Canadian research has-shown that a significant portion of
VISs include a sentencing recommendation .
The VIS presented to the court by a woman whose father and three children were
killed by a drunk driver is reproduced in Court File 9.3. It speaks of the silence that
now envelops her home.
Although VISs are enshrined in the Criminal Code, no guidance is provided as to
how the courts should utilize the information they contain and what role VISs should
play in sentencing. 47
It is estimated that VISs are presented to the court is as few as 10 percent of cases. 48 A
study ( = 96) of the use ofVISs by judges in British Columbia, Alberta, and Manitoba
found that two-thirds of the judges felt tl1at the VISs contained information that was
useful in sentencing. There was, however, considerable variability in the percentage of
Victim impact
statement (VIS)
Submission to a sentencing court
explaining the emotional, physical, and
financial impact of the crime.
COURT FILE 9.3
A MOTHER'S VICTIM IMPACT STATEMENT
I am listening in vain for my kids to call out my name and I don't hear them . I don 't
have anyone left to call me mom. Not one left .... Where there was once joy in waking
up and greeting the day there is only despair and heartache. The soothing night time
sounds of my children's gentle breathing, of their little footsteps coming into my room
are all gone .... When you killed my children you took away my identity as a mother and
without my kids, I'm nothing anymore .... When I begin to cry over one of my dead, I
feel so guilty because I am crying for one and not the other. I don't know how to even
begin to sort out the grief for my dad, my rock, my protector.... [E]very waking moment
is haunted by what was and what can never be again.
Source: R. v. Muzzo, 201 6 ONSC 2068.
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Part Ill: The Criminal Courts
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AT ISSUE 9.4
SHOULD VICTIM IMPACT STATEMENTS BE CONSIDERED
IN SENTENCING CONVICTED OFFENDERS?
Advocates of the introduction of victim impact statements (VISs) at sentencing contend that they
ensure that victims are involved in the justice process, make the justice system more accountable,
help the victim recover from the victimization, and educate both offenders and judges about the
real-life consequences of crime. Opponents of VISs argue that they are emotionally charged and
thus undermine the objectivity of the justice process. Research studies indicate that VISs have little
influence on the sentence a convicted offender receives.
In reality, victim impact statements are submitted in only a small percentage of cases, and there
are even fewer cases where crime victims present an impact statement in court. As well, judges
appear to value the information contained in victim impact statements, although it is uncertain as
to the impact of this information on the sentence that is imposed.a A number of provincial court
decisions have held that crime victims should have no role in determining the type of sentence
imposed although appeal courts have set aside sentences in a number of cases where it was
determined that important information from the victim impact statement had not been considered.b
QUESTION
1. In your view, what are the strongest arguments for and against the use of victim impact statements in sentencing?
• J.V. Roberts and A. Edgar. 2007. "Victim Impact Statements at Sentencing: Judicial Experiences and Perceptions-A
Survey of Three Jurisdictions," JustResearch, 14, 14-17. http://www.justice.gc.ca/eng/rp-pr/jr/jr14/jr14.pdf.
b S.N. Verdun-Jones and A.A. Tijerino. 2002. "The Influence of Victim Impact Statements on the Sentencing Process: The
Emerging Canadian Jurisprudence,• in Victim Participation in the Plea Negotiation Process in Canada: A Review of the
Literature and Four Models for Law Reform. Ottawa: Policy Centre for Victim Issues. http://canada.justice.gc.ca/eng/rp-pr/
cj-jp/victim/rr02_5/rr02_5.pdf.
Additional source: B. Anderson and 0. Colello. 2016, July 9. "Canadians' Moral Compass Set Differently from That of Our
Neighbours to the South" [news release]. Abacus Data. http://abacusdata.ca/canadians-moral-compass-set-differently
-from-that-of-our-neighbours-to-the-south.
judges who held this view, with Manitoba at 47 percent, British Columbia at 36 percent, and Alberta at 12 percent. 49 This suggests that there is uncertainty surrounding
the role ofVISs in the sentencing process. See At Issue 9.4.
Rather, how the information is used is left to the discretion of individual judges, with
some judges considering the VIS in formulating the sentence, and others viewing the
VIS as an opportunity to express the emotional impact that the crime has on the victim
and their family, which can assist the judge in understanding the consequences of the
offence but which is not meant to influence the sentence. 50 In the latter case, this may
result in disillusionment among crime victims due to unmet expectations.
COMMUNITY IMPACT STATEMENTS (CISs)
Section 722.2 of the Criminal Code provides that communities can also present impact
statements in court. A community impact statement describes to the court how the
crime committed by the offender impacted the community. 51
Providing for community impact statements is a recognition that the effects of crime
can be far-reaching. Sometimes the victim of an offence is more than one person-it is
a community. The purpose of community impact statements is to allow the community
to explain to the court and the offender how the crime has affected the community. For
example, in the case of R. v Muzzo (2016 0 SC 2068), which involved the death of
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269
three children in an accident caused by a drunk driver, community impact statements
were provided by the town mayor, the president and CEO of the mother's place of
employment, a school board trustee from the area in which the family lived, and a representative from the scouting group in which the children participated.
PUBLIC PERCEPTIONS OF SENTENCING
Recall from the discussion in Chapter 2 that the Canadian public is often misinformed
about the criminal justice system and is subject to being influenced by the media and
high-profile crimes. The sentencing decisions of judges, particularly in high-profile
cases, are often highly publicized in the media.
A survey of Canadians ( = 4,200) found concerns about sentencing practices,
focused on violent offenders who were perceived not to receive severe enough penalties, and punishments that were too harsh for offenders convicted of non-violent
offences, including selling drugs. 52 The survey also found that, for the respondents, two
of the most important considerations in sentencing were the harm done to the victim
and the offender's criminal history. 53 These findings suggest that the Canadian public
may not be as punitive as is often assumed, particularly with respect to persons who
have committed less serious offences.
RESTORATIVE APPROACHES AND SENTENCING
Questions surrounding the effectiveness of sentencing have provided an opporhmity for
restorative justice approaches to be used. One of the most important provisions of Section
718 was the introduction of restorative justice principles in the context of sentencing.54
In particular, subsection (e) states, "to provide reparations for harm done to victims or
to the community," and subsection (f) states, "to promote a sense of responsibility in
offenders, and acknowledgement of the harm done to victims or to the community."
Section 718 provides the opportunity to apply the principles of restorative justice
in determining the sentence for a convicted offender. One of the more well-known
approaches is circle sentencing, which draws from traditional Indigenous practices.
CIRCLE SENTENCING
Circle sentencing is a restorative justice strategy that involves collaboration and consensual decision-making by community residents, the victim, the offender, and justice
system personnel to resolve conflicts and sanction offenders. The process for circle sentencing was established in two court cases, R. v. Gingell (1996 50 CR (4 th ) 326 (QL)
(Y Terr Ct) and R. v. Moses (71 CCC (3'd) 347, [1992 ] 3 C LR 116 (QL)(Y Terr Ct).
Circle sentencing originally developed in several Yukon communities as a collaboration between community residents and territorial justice personnel, primarily RCMP
officers and judges from the Territorial Court of Yukon. Circle sentencing is premised
on traditional Indigenous healing practices and has multifaceted objectives, including
addressing the needs of communities, victims, the families of victims, and offenders
through a process of reconciliation, restitution, and reparation. A fundamental principle
of circle sentencing is that the sentence is less important than the process used to select it.
In circle sentencing, all of the participants, including defence lawyer, prosecutor,
police officer, victim and family, offender and famil y, and community residents, sit
facing one another in a circle. The presiding judge may or may not be present. Through
discussions, those in the circle reach a consensus about the best way to dispose of the
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Part Ill: The Criminal Courts
Circle sentencing
A restorative justice strategy that
involves collaboration and consensual
decision-making by community residents, the victim, the offender, and
justice system personnel to resolve
conflicts and sanction offenders.
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TABLE 9.3
DIFFERENCES BETWEEN CRIMINAL COURT AND CIRCLE
SENTENCING PRINCIPLES
The crime.
Crime is a small part of a larger conflict.
The sentence resolves the conflict.
The sentence is a small part of the solution.
The focus is on past conduct.
The focus is on present and future conduct.
Takes a narrow view of behaviour.
Takes a larger, holistic view of behaviour.
Not concerned with social conflict.
Focuses on social conflict.
The sentence is the most important part of
the process.
The sentence is the least important part of the
process; most important is the process itself, which
shapes the relationship among all parties.
Source: Reprinted by permission of Justice Barry D. Stuart.
case, taking into account both the need to protect the community and the rehabilitation and punishment of the offender. Note that judges are not bound by the recommendations of a sentencing circle and maintain control over sentencing at all times. Circle
sentencing has spawned a number of variations, including community sentence advisory committees, healing circles sentencing panels, and community mediation panels.
There are significant differences between the principles of sentencing in the criminal
courts and those of circle sentencing. These are highlighted in Table 9.3.
In contrast with the adversarial approach to justice, circle sentencing has the potential to reacquaint individuals, families, and communities with problem-solving skills;
rebuild relationships within communities; and focus on the causes, not just the symptoms of problems.
Circle sentencing is generally available only to offenders who plead guilty. The operation of the circle sentencing process is specific to communities, meaning that it may
(and should) vary between communities, and the circle-sentencing process relies heavily
upon community volunteers for its success. Both Indigenous and non-Indigenous victims, offenders, and community residents participate in sentencing circles. An example
of a circle sentencing hearing is presented in Court File 9.4.
It should be pointed out that circle sentencing is not appropriate for all offenders
or for all crimes. Moreover, the success of a given circle will depend on the extent
to which all of its participants are committed to the principles of restorative justice.55
There are general concerns about the use of restorative justice approaches in First
ations communities in cases involving intimate parb1er violence. 56 Specific concerns
have been raised, for example, as to whether crime victims-especially Indigenous
women who have been the victims of sexual assault and domestic abuse-may be pressured into participating in circle sentencing. 57 Also, sentencing circles are not part of
Inuit tradition, so there may be limits in the extent to which this approach can be used
in these communities. ote also that presiding judges are not obligated to follow the
recommendations of sentencing circles.
THE POLITICS OF SENTENCING
Commenting on the absence of research-informed sentencing policy in Canada, the
criminologist Julian Roberts stated, "Politics is stronger than evidence." 58
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271
COURT FILE 9.4
A CIRCLE SENTENCING IN SHESHATSHIU, NEWFOUNDLAND AND LABRADOR
NEWFOUNDLAND
AND LABRADOR
rn~ L : ~!
~
R
b/l
cJ0)
Sheshatshiu, Newfoundland and Labrador
In June 2015, a man in the lnnu community of Sheshatshiu, charged
with two counts of assault, opted to have circle sentencing as part
of the court proceedings. Both the victim and the accused agreed to
the process and the accused admitted his guilt. The circle sentencing
hearing was attended by the judge, the Crown, the defence, the accused, the victim, persons affected by the crime, and other community
members. Everyone was called upon to speak, including community
members who shared their stories and, for some, their struggles
with substance abuse and their efforts to address it. The value of
this approach was noted by the Sheshatshiu lnnu First Nation justice
coordinator, who stated, "I think there is a situation where the accused
is asking the court to hear the history, and also echo some of the challenges in terms of what he has gone through and set a picture. He's
not making excuses in terms of more leniency. But more of a process
where we can have a dialogue between the court system and the lnnu
and have that discussion. It's much more inclusive."a
Contrast the dynamic of a circle sentencing with the advice given
to accused persons as to how to behave at sentencing in the criminal
court by Student Legal Services of Edmonton. Under the section
"Speak to Sentence," it states:
As a general rule, you should say nothing about the offence
unless there are mitigating circumstances that should be
brought to the attention of the Judge. If you had a really
good reason to commit the offence (i.e. shoplifting to feed
your hungry children) or if it was completely out of character for you to commit such an offence, then you should
explain your circumstances to the Judge to give him/her an
understanding of why you committed the offence. If there is
no acceptable reason for why you committed the offence,
then you are better off saying nothing.b
• J. Barker. 2016, June 11 . "Sheshatshiu Man Opts for Rare lnnu Sentencing Circle,"
CBC News. http://www.cbc.ca/news/canada/newfoundland-labrador/sheshatshiu
-man-opts-for-rare-innu-sentencing-circle-1 .3630921.
b Student Legal Services of Edmonton. 2015. "Guilty Pleas and Sentencing." http://
www.slsedmonton.com/criminaVhow-to-plead-guilty/#SPEAK_TO_SENTENCE.
Recall the discussion in Chapter 2 that the criminal justice system is often affected
by politics. In that chapter, the "get tough ," Ameri can-style approach of the federal
Conservative government (2006-15 ) resulted in a number of significant changes to
sentencing in Canada. One of the overall obj ectives of the legislation that was passed
by the gove rnment was to limit the discretion of judges. This included an expansion in
the number of offences subject to mandatory minimum sentences. As one judge stated,
the legislation marked "a move away from individualized discretion in sentencing." 59
This included legislation that included th e following provisions:
• restrictions on judges as to what types of offences can be considered for a conditional
sentence, which is generall y served at home
• elimination of "two-for-one" (two days credit for one day served) for time served by
offenders in pretrial custody (Bill C-25 : The Truth in Sentencing Act, 2009)
• the introduction of mandatory mini mum sentences for 60 criminal offences, including
crimes involving guns and drugs (Bill C-1 0: The Safe Streets and C ommunities
Act, 20 12)
• provisions that encouraged Crown counsel to consider adult sentences for young
offenders who have committed certain offences, and changes in the rules of pretrial
detention for this offender population (Bill C-1 0: Th e Safe Streets and Communities
Act, 20 12)
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Part Ill: The Criminal Courts
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The extent to which this approach to responding to offenders will remain intact is
questionable. In decisions made in 2014 through 2016, the SCC
• held that a provision of the Truth in Sentencing Act (2009) that prohibited judges from
giving more than one-for-one pretrial credit was deemed to be unreasonable and unconstitutional (R. V. Summer, 2014 sec 26);
• struck down a provision in the Criminal Code that prevented sentencing judges from
crediting more than the time the offender actually served in pre-trial detention against
the sentence imposed when the offender had been denied bail because of a past criminal record. (R. V. Safarzadeh-Markhali, 2016 sec 14); and
• struck down the three-year minimum sentence for illegal gun possession, calling the law
"cruel and unusual punishment" (R. v. ur, 2015 SCC 15), and the one-year minimum
term for drug traffickers with a previous conviction for trafficking (R. V. Lloyd, 2016 sec 13).
THE EFFECTIVENESS OF SENTENCING
Despite the critical role of sentencing in the criminal justice system, there are questions
about its effectiveness in addressing the needs of victims, offenders, and the community.
Some of the research on the effectiveness of sentencing is summarized in Research File 9.1.
RESEARCH FILE 9.1
THE EFFECTIVENESS OF SENTENCING
Does increasing the severity of punishment have a deterrent effect on
offenders? Generally, no. It is the certainty of punishment, rather than
the severity of punishment, that has the most significant deterrent effect on offenders and others. While persons with a stake in conformity
may fear lost opportunities if they are criminally sanctioned, marginal
persons who perceive that they have few legitimate opportunities (and
who in fact do not have many) may not engage in this calculus.a
Persons with strong family and community ties are much more likely to
be deterred by the fear of being caught than persons without those ties. b
Is there consistency in sentencing? Not always. With a few exceptions
involving mandatory minimum sentences, most offences have only a
maximum penalty, and this provides judges with considerable discretion in deciding both the objective of the sentence and the specific
penalty. This makes it difficult to predict with any accuracy what type
of sentence will be imposed for offences, even though judges are
guided by case precedents.
Does the threat of longer prison terms reduce crime? Not likely. Mandatory minimum sentences do not appear to have a deterrent impact
on criminal offending.c
Are sentences matched effectively to individual offenders?Often, no.
Matching specific sentencing options with the needs and risks of offenders is, at best, an inexact science. Few research studies have examined
which types of sentences are most effective-that is, which ones serve as
a deterrent and address risk and needs-with specific types of offenders.
Is there continuity from criminal courts to corrections? Not always.
Once the offender leaves the courtroom, he or she becomes the
responsibility of corrections. Judicial recommendations for placement
and treatment programming are not binding on correctional decision-makers. However, this continuity is increased in specialized courts.
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Do problem-solving courts work?Potentially. They can be effective at
reducing rates of reoffending. See Table 7.1.
Are circle sentencing and peacemaking effective? Potentially. There
have been few controlled evaluations of these programs. Most of the
literature on circle sentencing is anecdotal, which makes it difficult to
develop evidence-based practices and to determine the factors that
may facilitate (or hinder) the effective use of this restorative justice
strategy. This includes whether the community itself has the capacity
to support circle sentencing and whether the rights of the victim will be
protected.d Concerns have surrounded the use of circle sentencing in
cases involving domestic violence, with critics arguing that the power
imbalances between the accused and the accuser may result in the
revictimization of women.e
• National Institute of Justice. 2014. Ave Things About Deterrence. Washington, DC:
U.S. Department of Justice. https://www.ncjrs.gov/pdffiles1/nij/247350.pdf; S.N.
Durlauf and D.S. Nag in. 2011. "The Deterrent Effect of Punishment," in Controlling
Crime: Strategies and Tradeoffs, edited by P.J. Cook, J. Ludwig, and J. Mccrary, 43-94.
Chicago: University of Chicago Press.
b A.E. Perry. 2016. "Sentencing and Deterrence," in What Worl<s in Crime Prevention
and Rehabilitation: Lessons from Systematic Reviews, edited by D. Weisburd, D.P.F.
Arrington, and C. Gill, 169-191 . New York: Springer.
' P.Menedez and D.J. Weatherburn. 2015. "Does the Threat of Longer Prison Terms
Reduce the Incidence of Assaul,• Australian & New Zealand Journal of Criminology,
4g:3), 389-404.
d C.T. Griffiths and R
. Hamilton. 1996. "Sanctioning and Healing: Restorative Justice in
canadian Aboriginal Communities," in Restorative Justice: Theory, Practice, and Research,
edited by J. Hudson and B. Galaway, 175-191 . Monsey, NY: Criminal Justice Press.
• A. Cameron. 2006. "Sentencing Circles and Intimate Violence: ACanadian Feminist
Perspective," Ganadian Journal of Women and the Law, 18;2), 479-512; A. Shagufta.
2010. "Should Restorative Justice Be Used for Cases of Domestic Violence?"
International Journal of Restorative Justice, 6(1), 1-48.
CHAPTER 9: Sentencing
273
YOU BE THE JUDGE
Even with a number of offences that, upon conviction, carry a mandatory minimum
sentence, Canadian judges exercise considerable discretion in sentencing. To gain an
appreciation of the challenges judges face in making sentencing decisions, review the
summaries of actual cases presented in Court File 9.5. Place yourself in the position of
the sentencing judge.
COURT FILE 9.5
YOU BE THE JUDGE
Read each of the following case summaries. Then decide on a sentence and note the purpose of your sentence. Record your sentencing
decisions and the reasons why you selected each particular sentence.
Once you have completed all five cases, check at the end of the
chapter in Class/Group Discussion Exercise 9.1 and see the actual
sentences imposed by the judges for these cases.
Case 1 Appearing before you is the former mayor of a large
Canadian city. He has been found guilty of eight criminal charges
related to pocketing nearly $37,000 in kickbacks from property
developers and engineering firms in the city through his former
aide. The former aide testified at trial that he led developers and
business persons to believe that their projects would be delayed
or not approved unless they made cash contributions. The cash
"donations" were then split between the aide and the mayor.
The prosecution is asking for a sentence of two years in prison,
followed by two years on probation. Defence counsel has proposed that either a suspended sentence be imposed, or a mixed
sentence that would include probation, community service work,
and non-consecutive jail time. The maximum sentence that can be
imposed for this offence is five years in prison.
Case 2 Appearing before you is a 38-year-old man who has been
convicted of assault causing bodily harm. The conviction is the result
of an incident that occurred during a 3-on-3 non-contact Ice Hockey
Challenge tournament in Fort Erie, Ontario. The goalie had left the
crease and, using two hands, used his goalie stick to smash the face
of an onrushing player who was on a breakaway. The hit resulted
in severe damage to the victim's face, which required numerous
surgeries and reconstructions. Evidence showed that the goalie had
been celebrating his birthday and had been binge-drinking prior to
the game. The accused has no prior record and a stable employment
record, although he came from a troubled background. His father
had spent 20 of his 44 years in prison and was beaten to death by
members of a biker gang when the accused was 12 years old. The
accused has written a letter of apology to the victim and has started
counselling for his alcohol problems. The Crown prosecutor has
asked for a sentence from between 30 days and nine months, while
the defence lawyer has asked the judge to place the accused on
probation, or to give him a conditional discharge.
Case 3 In court for sentencing is a 38-year-old man who has
pied guilty to two counts of aggravated assault, dangerous driving
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Part Il l: The Criminal Courts
causing bodily harm, mischief over $5,000, and assault with a
weapon. The man had gotten into an argument with employees at
a gas station about how to pre-pay for gas. He left the gas station,
but then returned and, several minutes later, drove his truck through
the front entrance of the store at a high rate of speed, hitting four
people. All of the victims suffered significant injuries. Crown counsel
is requesting that you impose a sentence of five to seven years and
a ten-year driving ban. The defence lawyer is seeking a jail term
of two years less a day and a five-year driving ban. In the Criminal
Code, aggravated assault is an indictable offence punishable by
period of imprisonment not to exceed 14 years; dangerous driving
causing bodily harm is punishable by a period of imprisonment not
to exceed 10 years; mischief over $5,000 is punishable by a period
of imprisonment up to 1Oyears; and assault with a weapon has a
maximum sentence of 18 months in jail if a summary conviction,
and 10 years in prison if an indictable conviction. Evidence presented in court revealed that it was the man's first criminal offence
and that he had a "chaotic upbringing."
Case 4 Before you is an Indigenous man who is a resident of the
Yellow Quill First Nation in Saskatchewan. While severely intoxicated, the man led his two daughters-aged three and one-into
a blizzard and then blacked out. The two girls perished in the
- 30°Cweather. The man has pied guilty to criminal negligence
causing death. For this offence, the penalty is life imprisonment.
The man has a criminal record involving 52 convictions, primarily
related to not following court orders. Crown counsel has suggested that an appropriate sentence would be two-and-a-half to
five years in prison, while the defence has asked for a conditional
sentence to be served at home in the community. (Note: This case
was heard prior to the change in the law that prohibited the use of
conditional sentences in cases involving violence.) In considering
an appropriate sentence, you have directed that a sentencing circle
be formed, composed of police, Crown counsel , defence lawyers,
Elders, and others from the community, including family members.
Following lengthy deliberations, which included conversations with
the man, the sentencing circle has recommended to you that he
not be sent to prison but rather he should remain in the community
to heal under the guidance of Elders and participate in alcohol and
drug treatment. The record also indicates that the man violated his
bail conditions while awaiting sentencing by drinking and also has
been charged with assaulting his common-law wife.
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The purposes of sentencing and the va rious sentencing options available to judges
were presented earlier in this chapter. Recall from the discussion of sentencing options
that yo u can combine some options; that is, you can sentence the offender to a period
of custody in a provincial correctional facility and , as well, add on a period of probation
of up to three yea rs. Probation cannot be used in conjunction with a sentence of more
than hvo yea rs, which places the offender under the jurisdiction of fed eral corrections.
As well, the various objectives of sentencing were discussed earlier.60
A JUDGE DELIBERATES ON A SENTENCE:
THE CASE OF R. \I. BURGESS
Selected materials from the case of R. v. Burgess (20 16 SPC 1) are presented below
to illustrate how judges consider the va rious types of information in determining a sentence . The case involved a 34-year-old woman who had been found guilty of manslaughter in 2016 for pushing her elderly father down a flight of stairs during a domestic
argument. The judge imposed a sentence of four years.
The materials include the presiding judge's comments on the victim impact statement submitted to the court, the findings of the pre-sentence report, and what the judge
identified as the aggravating and mitigating factors in the case.
VICTIM IMPACT STATEMENTS
Mr. Burgess's death and the circumstances under which it occurred have had a devastating effect on the individual members of his family and their relationships . Six family
members provided victim impact statements in which they movingly expressed their
profound grief and heartache. Mr. Burgess's wife, Lynda, referring to him as her "soulmate," spoke of how much she misses him. His three sisters described their brother
as loving and caring. They grieve their loss and the broken family relationships. Mr.
Burgess's youngest sister, Christine, has experienced a deterioration in her health since
he died. She characterized the description of her brother as "a good guy," offered by
many people who have spoken to her since her brother's death, as a perfect description .
In her words, "not perfect, but a good guy." Mr. Burgess's sister-in-law, the sister of
Lynda Burgess, mourns someone she loved and, as with everyone else who provided
statements, laments the deeply painful divisions that now exist in the family.
VANESSA BURGESS'S BACKGROUND AND CIRCUMSTANCES
Interviewed for her pre-sentence report, Ms. Burgess described an unhappy and stressful
childhood and adolescence. She was bullied at school and verbally abused at home. She
felt emotionally deprived by her parents, saying they were not affectionate with her or with
each other. Ms. Burgess had a better relationship with her father than with her mother.
She left home at 15 and developed a substance abuse problem . She used illegal drugs
and became an alcoholic. Around the age of 20, she overcame her substance abuse dependency and has been sober for over eight years. 11,e evidence at trial indicated Ms. Burgess's
belief that her father was resentful of her successful recovery. Although he had been sober
for many years while Ms. Burgess was growing up, about 11 years before his death he began
drinking again, which led to a pronounced deterioration in their relationship.
Ms. Burgess moved back to live with her parents about 15 to 16 months prior to July
2011 so that she could focus on obtaining her high school diploma . She told police that the
atmosphere at home prior to July 20 had been "very, very toxic." In her police interrogation
and her testimony at trial, Ms. Burgess said her father had subjected her to name-calling
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275
and disparaging comments. Ms. Burgess is now 32. She is involved in a dating relationship
with a 39-year-old man who is very supportive of her. He is aware that Ms. Burgess has been
convicted of manslaughter. He provided a letter of support for her sentencing.
Ms. Burgess told the author of the pre-sentence report that her boyfriend is "a strong
person with strong family values which is good for her. ... " She believes the relationship will continue. Ms. Burgess advised the author of the pre-sentence report that she
obtained her Grade 12 with very good marks and attended Maritime Business College
in 2013 for a business development certification. She has worked in various jobs,
including most recently as a house painter, but is currently unemployed.
The foreman with the painting company where Ms. Burgess had been employed told
the author of the pre-sentence report that Ms. Burgess was a reliable and responsible
worker who got along well with the other employees and established positive relationships
with clients. Ms. Burgess has been an active and enthusiastic volunteer with Search and
Rescue and her church. She was an energetic contributor to the activities of the Student
Association at the Nova Scotia Community College where she took her Grade 12.
As I will mention shortly, Ms. Burgess is highly valued by her friends, a number
of whom have submitted supportive letters on her behalf. Ms. Burgess has accessed
various counselling programs and services in the past, including substance abuse counselling and anger management. She has been attending sessions with an Elizabeth Fry
Society support worker since 2013, and her family doctor has prescribed medication
to help with sleep disturbance issues and mild depressive symptoms. Ms. Burgess also
reports significant grief over her father's death, telling the author of the pre-sentence
report, "I miss him so much. I have had no closure .. .. "
Ms. Burgess's Elizabeth Fry Society support worker described her as a "very spiritual
person" whose spirituality has been helping her cope with the stress of the court proceedings. The pre-sentence report concludes by stating that Ms. Burgess's "level of commitment
to maintaining abstinence from drugs and alcohol is commendable; however, that level
of commitment to addressing her grief and mental health would benefit [her] as well."
AGGRAVATING FACTORS
My trial findings identify a number of aggravating factors:
• Ms. Burgess used considerable force against her father in objectively dangerous circumstances at the top of a steep set of stairs.
• Ms. Burgess was larger, stronger, and sober. Her father was of slight stature and intoxicated.
• Ms. Burgess did not do anything to have Mr. Burgess assessed for injuries he might have
sustained in such a serious fall, a fall from the top to the bottom of the stairs. She did
not tell her mother the truth about how Mr. Burgess had fallen until the next morning
after they had both left the house and Mr. Burgess was still at the bottom of the stairs.
MITIGATING FACTORS
Ms. Burgess's previous good character and lack of a prior record are mitigating factors. She has endeavoured to be a contributing member of the community through
her Search and Rescue volunteer work and has been supportive and helpful to her
friends. She has shown herself to be a good, reliable employee. She is to be credited for
attending counselling sessions through the Elizabeth Fry Society and for maintaining
sobriety after a struggle with substance abuse issues.
Ms. Burgess's remorse is also a mitigating factor entitled to some, albeit limited, weight.
Ms. Burgess is described as remorseful in the pre-sentence report, which indicates that
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Part Ill: The Criminal Courts
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she accepts responsibility for her actions and does not rationalize or deny her behaviour.
However, Ms. Burgess qualified her role by stating, "Apparently, my push pushed him down
the stairs but tl1ere was no intent to hurt him. I would never hurt my father. This hurts me
a great deal. ... " As I mentioned earlier in these reasons, she also told the autl1or of the presentence report, " .. .I am a good person . Something bad happened to me and I am willing
to take responsibility for it." It seems obvious tl1at Ms. Burgess has not fully recognized the
extent of her responsibility for her father's death (R v. Burgess, 2016 SPC 1).
SUMMARY
TI1e discussion in tl1is chapter has focused on sentencing in the criminal courts. The purposes
and principles of sentencing were set out along with the various judicial sentencing options.
Canadian judges also have additional authority to use judicial determination, issue judicial
restraint orders, and designate offenders as dangerous offenders or long-term offenders.
The factors that judges taken into account in making decisions were discussed, and
it was noted that extra-legal variables may come into play as well. The challenges of
sentencing in a diverse society were discussed, including the issue surrounding the
sentencing of Indigenous offenders within the framework of section 718.2(e) of the
Criminal Code and the Gladue decision. These require judges to consider alternatives
to incarceration for Indigenous offenders; it is applied unevenl y across the country and
may not be a consideration in cases involving violent offending. The discussion also
considered the increasing role of cultural assessments in sentencing. Judges have considerable discretion in imposing sentences, and their decision-making may be influenced by case law precedent, by statutory guidance, and by their own biases.
Victim impact statements and federal legislation are designed to increase victim
involvement in the sentencing process, although restorative justice approaches may
hold more potential for ensuring that the needs of crime victims are met.
Excerpts from the case of R v. Burgess were used to illustrate the role of victim impact
statements, the pre-sentence report, and the judge's determination of aggravating and
mitigating factors in the case on the sentence imposed on a convicted person.
KEY POINTS REVIEW
1. Among the statutory objectives of sentencing are denunciation, deterrence, the separation of offenders from society, rehabilitation, and reparation for harm done.
2. The sentencing goals in the criminal courts fall into three main groups: utilitarian,
retributive, and restorative.
3. Judges can select among a number of sentencing options.
4. Judges can impose a number of additional conditions on offenders, including judicial
determination, judicial restraint orders, and dangerous offender and long-term offender
designations.
5. Criminal court judges consider a wide range of factors in determining the sentence to
be imposed on an offender.
6. There are several offences that, upon conviction, carry mandatory minimum sentences.
7. Efforts have been made to reduce the overrepresentation of Indigenous peoples in
correctional institutions by considering alternatives to confinement in sentencing,
although the impact of section 718.2(e) of the Criminal Code and the Gladue decision
is questionable.
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CHAPTER 9: Sentencing
277
8. Sentencing is among the most difficult tasks that judges have to perform and probably
the most controversial.
9. Mandatory minimum sentences may not serve as a deterrent or make communities safer
and can best be viewed as a politically driven crime policy.
10. There is evidence that the personal attributes of judges may influence their
decision-making.
11. Judges in th e criminal courts can select from a range of sentencing options, which
include various alternatives to confinement and varying terms of imprisonment in correctional institutions.
12. There have been increasing efforts to involve victims in the sentencing process.
13. C ircle sentencing is an example of a restorative justice approach that can be an al ternative to traditional sentencing.
14. Politics can have a significant impact on the legislative framework of sentencing.
15. Excerpts from the case of R. v. Burgess illustrate how judges weigh information in a case
in reaching a decision.
16. Research evidence is for the most part inconclusive as to the effectiveness of the various
sentencing options, although it appears that incarceration is not an effective general or
specific deterrent.
KEY TERM QUESTIONS
1. What is meant by proportionality in sentencing, and what is the principle of restraint?
2. What is a suspended sentence, a conditional sentence, and an intermittent sentence?
3. Define probation.
4. What is the difference between a concurrent and a consecutive sentence?
5. What is judicial determination and what role does it play in sentencing?
6. How do the designations of dangerous offender and long-term offender impact convicted persons?
7. What was the Gladue decision and what is a Gladue report role do they play in the
sentencing of Indigenous offenders?
8. Describe wha t is meant by sentencing disparity and provide examples.
9. What are the collateral consequences of sentencing?
10. What role does case law precedent play in sentencing?
11 . What is a victim impact statement (VIS), and what role does it play in the criminal
justice process?
12. Describe circle sentencing and then contrast its principles with those of the traditional
criminal court.
CRITICAL THINKING EXERCISES
Critical Thinking Exercise 9.1
Sentencing Options
With the exception of th ose offences that, upon conviction, require the judge to impose
a mandato ry minimum sentence, Canadian judges exercise consideration discretion in
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Part Ill: The Criminal Courts
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sentencing. Review the case examples for each of the sentencing options that are set
out in Table 9.1 . Consider the sentencing option that was selected in the case by the
presiding judge.
Your Thoughts?
1. Considering the brief information presented for each of the case examples, in your view,
was the appropriate sentencing option selected?
2. Provide the basis for your opinion of each case.
Critical Thinking Exercise 9.2
Predictability in Sentencing versus Individualized Discretion in Sentencing
Bill C-10, the Safe Communities and Streets Act (2012), was designed, in part, to reduce
the discretion of judges in sentencing. In expressing concerns about this legislation, one
judge stated that it undermined a longstanding principle of sentencing that had been
established by the SCC, most notably that:
There is no such thing as a uniform sentence for a particular crime .. .. Sentences
for a particular offence should be expected to vary to some degree across various
communities and regions in this country, as the "just and appropriate" mix of
accepted sentencing goals will depend on the needs and current conditions of
and in the particular community where the crime occurred."
Your Thoughts?
1. What is your response to this judge's comments?
2. What arguments could be offered in support of, and in opposition to, the notion of individualized decision-making?
3. A critic of individualized decision-making might raise the issue as to whether the notion
of variability in sentencing, considering "the needs and current conditions of and in a
particular community," might lead to decisions that are discriminatory against certain
groups or persons. How would you respond to this criticism?
• R.M. Pomerance (Justice). 2013. "The New Approach to Sentencing in Canada: Reflections of a Trial Judge," Canadian Criminal
Law Review, 17(3), 305-326 at p. 307.
Critical Thinking Exercise 9.3
A Critique of Gladue
Following are excerpts from an editorial about the Gladue principle that appeared in the
Toronto Sun newspaper:
The courts must consider as mitigating factors the effects of colonialism, residential schools, displacement and other historical wrongdoings, including what
impact those may have had on aboriginal offenders.
There are no similar provisions for non-aboriginal offenders, including those
who may have come from war-torn countries or suffered directly or indirectly
from human atrocities such as the Holocaust or Cambodia's Khmer Rouge
mass-killings of tl1e 1970s.
o, the sentencing provisions are based on the race of the offender only. Which
is racism. And in a free, just and democratic country like Canada, it's appalling
we have these kinds of laws on the books.
Instead of creating racist laws, Parliament should address some of the root causes
of why so many aboriginals are in jail-like the effects of another racist law, the
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CHAPTER 9: Sentencing
279
Indian Act, and the continued segrega ti on of aboriginal people. How about the
squalid and inhumane co nditions of many reserves in Canada?•
Your Thoughts?
1. How would you respond to this editorial?
aT. Brodbeck. 2012, December 16. "Federal Justice Minister Rob Nicholson Backs Gladue Racist Sentencing Laws," Winnipeg
sun. http://wWW.winnipegsun.com/2012/12/15/federal-justice-minister-rob-nicholson-backs-gladue-racist-sentencing-laws.
Material republished with the express permission of Postmedia Network Inc.
CLASS/GROUP DISCUSSION EXERCISE
Class/Group Discussion Exercise 9.1
You Be the Judge Results from the Cases in Court File 9.5
Case 1 Decision On March 30, 20 17, Judge Louise Provost of th e Quebec Court sentenced
the former mayor of Montreal, M ichel Applebaum to one yea r in prison, followed by two
yea rs on probation . The judge re jected the submission of the defence, noting th at defendant
did not express remorse for the offences and had not accepted responsibility for his actions.
In pass ing sentence, the judge stated, "The court considers th at the accused will probably
not be able to hold an elected position in the futu re, th ereby reducing the risk of recidivism. But th e crime is seri ous because it has an element of corruption . T his reprehensible
behaviour violates th e fund amental values of our society."
Applebaum was granted parol e in Ma rch 20 17 after serving one-sixth of his one-yea r
sentence. Among th e conditions of his release we re that he seek empl oyment, perform at
least 20 hours of communi ty service per week, and report twice a week to th e police fo r two
months. He will th en be subj ect to a two-yea r peri od of probation.
Source: S. Banerjee. 2017, March 30. "Ex-Montreal Mayor Applebaum Sentenced to One Year in Prison for Corruption," Globe
and Mail. http://www.theglobeandmail.com/news/nationaVex-montreal-mayor-applebaum-sentenced-to-one-year-in-prison-for
-corruption/article34501569; S. Banerjee. 2017, June 6. "Ex-Montreal Mayor Michael Applebaum Granted Parole," Toronto Sun.
http://www.torontosun.com/2017/06/06/ex-montreal-mayor-michael-applebaum-granted-parole.
Case 2 Decision On Ma rch 30, 20 17, Judge Tory Calvin sentenced Todd Ball to serve an
intermittent sentence of 30 days on weekends and one yea r of probati on fo r assa ult causing
bodil y harm. T he probation order included a requirement of alcohol counselling. T he
judge noted that Ball had written a letter of apology and was in counselling. T he judge also
noted that on-i ce assa ults within a hockey ga me present challenges for th e justice system,
as th ere may be some level of violence associated with th e ga me and by stepping onto the
ice, and players accept that th ey may be subj ect to inju ry. T he judge stated, "In my mind,
th e significant fact is that this was a non-contract, fun tournament. It makes it very different
from cases involving competiti ve play, fo r instance in the HL or the AHL." Following th e
sentencing, th e victim stated, "I feel th ey should have made an example out of him. He
only got 30 clays for breaking someone's face. My life has never been th e same."
Source: B. Sawchuk. 2017, March 30. "Ontario Goalie Who Destroyed Hockey Player's Face to Serve 30-Day Jail Sentence on
Weekends," National Post. http://news.nationalpost.com/sports/ontario-goalie-who-destroyed-hockey-players-face-to-serve
-30-day-jail-sentence-on-weekends.
Case 3 Decision On January 16, 20 17, Alberta provincial court judge Mike Allen
sentenced Steven Cloutier to six yea rs in prison and also imposed a ten-yea r dri ving ban .
The judge desc ribed th e eve nt as "a bomb hitting th e stati on" and add ed, "It became a
terri fy ing, life-altering day." In determining th e sentence, th e judge indicated th at he had
taken into account that it was C loutier's first offence and also th e findin gs of a psychological report indicating neglect during childhood.
Source: M. Dhariwal. 2017, January 16. ' Six-Year Sentence for May Who Drove Truck into Edmonton Gas Station," CBC News.
http://www.cbc.ca/news/canada/edmonton/six-year-sentence-for-man-who-drove-truck-into-edmonton-gas-station-1.3937908.
Case 4 Decision On March 6, 2009, Ch ristopher Pauchay was sentenced to three yea rs
in prison . T he judge's rati onale fo r not foll owing th e recommendati ons of th e sentencing
280
Part 111: The Criminal Courts
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\
circle was that Pauchay lacked insight into his behaviour and didn 't accept responsibility
for the deaths. Pauchay subsequently served two-thirds of his sentence in confinement and
was released on statutory release in 2011. His sentence expired in January 2012.
I
I
Source: CBC News. 2009, March 6. "Father of Girls Who Froze to Death Gets 3 Years in Prison.• http://www.cbc.ca/news/
canada/saskatchewan/father-of-girls-who-froze-to-death-gets-3-years-in-prison-1.840881.
I
Your Thoughts?
I
For each of the four cases, ask yourself these questions:
1. Did my sentence match the sentence of the judge?
2. Was it more lenient or harsher?
3. Did the judge in the actual case make a good decision?
4. With respect to the Pauchay case:
a. In your view, was the judge correct in directing that a circle sentencing process be
conducted in this case?
b. Do you agree with the final sentencing decision of the judge in this case?
c. Critics of the judge's decision might argue that the court's decision undermines the
efforts of communities to be involved in the justice process. In your view, is this a valid
concern?
MEDIA LINK
"Crime and Punishment-The Story of Capital Punishment," https://www.youtube.com/
watch?v=0h WcX9vZiKc
REFERENCES
1. The Canadian Criminal Law
otebook. 2017. http://
criminalnotebook.ca/index.php/Concurrent_and_Consecutive
_Sentences.
http://www.theglobeandmail.com/news/national/armoured
-car-shooter-won t-ge t-o u t-o f-p ri son-for-a t-1 east -40-yea rs/
article I 425 5049.
2. CBC ews. 2013, September 11. "Travis Baumgartner Gets
40 Years without Parole for Killing Co-Workers." http://www
.c be. ca/news/ca nada/ed 111011 ton/travi s-ba u mgarh1 er-gets-40
-years-without-parole-for-killing-co-workers-1.1706464.
7. S. Bontrager, K. Barrick, and E. Stupi. 2013. "Gender and
Sentencing: A Meta-Analysis of Contemporary Research,"
Joumal of Gender, Race, 6 Justice, 16(2), 349-372 .
3. CBC ews. 20 14, October 31. "Justin Bourque Gets 5 Life
Sentences, o Chance for Parole for 75 Years." http://www
.cbc.ca/news/canada/new-brunswick/justin-bourque-gets-5
-life-sentences-no-chance-of-parole-for-75-years-1.2818516.
4. D. Dias. 2015, Jul y 2. "Mandatory Victim Surcharges
Unconstitutional: B.C. Court," Canadian Lawyer.
http://www. can a di an Iawye rmag. com /l ega Ifeeds/2 7 7 3 /
mandatory-vi cti m-su re ha rges-u n cons ti tu ti on a 1-b-c-co u rt
-main.html.
8. Ibid.
9. JV Roberts and G . Watson. 2017. "Reducing Female
Admissions to Custody: Exploring the Options at Sentencing,"
Criminology and Criminal Justice, 17(5), 546-567.
10. Public Safety Canada Portfolio Corrections Statistics
Committee. 2016. Corrections and Conditional Release
Statistical Overview: 2015 Annual Report. Ottawa: Public
Safety Canada. https://www.publicsafety.gc.ca/cnt/rsrcs/
pblctns/ccrso-20l5/ccrso-2015-en.pdf.
5. Deparhnent of Justice. 2017. "Peace Bonds Fact Sheet." http://
www. justi ce.gc. ca/eng/c j-jp/vi cti ms-victim es/fa c tsh eets-fi ch es/
peace-paix.hb11l.
. Macdonald . 2016, February 18. "Canada's Prisons Are
the ' ew Residential Schools,"' Macleans. http://www
.mac leans .ca/news/ca nada/ca nadas-prisons-a re-the-new
-residential-schools.
6. C. Purdy.2013, September 11. "Armoured Car Shooter Won't
Get Out of Prison for at Least 40 Years," Globe and Mail.
12. R. Langevin and S. Curnoe. 2014. "Are Dangerous Offenders
Different from Other Offenders? A Clinical Profile,"
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11.
CHAPTER 9: Sentencing
281
Chapter 1 O: Corrections in the Community: Alternatives to Confinement
Chapter 11: Correctional Institutions
Chapter 12: Release, Re-entry, and Reintegration
This part examines the corrections component of the criminal justice system.
Corrections can be defined as the structure, policies, and programs delivered by governments, not-for-profit organizations, and members of the general public to sanction, punish, treat, and supervise in the community and in
correctional institutions, persons convicted of criminal offences.
Correctional systems and the other components of the criminal justice
system have as their primary mandate the protection of society. However,
there is often disagreement over how this goal can best be accomplished.
Historically, the corrections "pendulum" has swung back and forth between
more punitive policies and those that are more focused on rehabilitation . In
the early 21st century, a more punitive penology emerged under the federal
Conservative government (2006-15 ), although court decisions and legislative and policy changes by the federal Liberal government (2015-present)
have mitigated this to some degree.
All correctional systems have both non-carceral (non-institutional) and
carceral (institutional) components. on-carceral corrections, often referred
to as community corrections, includes both alternatives to confinement and
programs for offenders released from correctional institutions. Carceral corrections includes jails and correctional institutions operated by the provinces
and territories and the federal government.
Chapter 10 explores strategies that provide alternatives to confinement
and provide for the supervision and control of offenders in the community,
including sentencing options such as conditional discharge, suspended sentences, diversion programs, conditional sentences, and probation.
Chapter 11 examines the attributes of correctional institutions that
pose challenges for inmates , correctional officers, management, and treatment staff.
Chapter 12 examines the release of offenders from confinement and their
re-entry and reintegration back into the community.
An excellent resource for non-carceral and carceral corrections is the
Criminalization and Punishment Education Project run by the University of
Ottawa and Carleton University (http://tpcp-canada.blogspot.ca).
285
CHAPTER 10
co~ RECTIONS IN THE COMMUNITY:
ALTERNATIVES TO CONFINEMENT
After reading this chapter, you should be able to
• Describe the sentencing options that provide an alternative to incarceration.
• Discuss the issues that surround the use of diversion.
• Describe conditional sentences and their use as an alternative to confinement.
• Identify the ways in which an offender can be on probation and compare and
contrast probation with parole and with conditional sentences.
• Discuss the recruitment , training , role, and responsibilities of probation officers.
• Describe how the principles of risk, need, and responsivity are used in probation
practice.
·:1 • Discuss the experience of persons on probation.
• Identify and discuss the challenges of probation practice.
• Describe the use of electronic monitoring and GPS with probationers and discuss
the issues surrounding the use of high technology for supervision.
Many challenges may be encountered by persons who are in conflict with the law and
are placed on probation. Probation officers may also have difficulties providing effective supervision and intervention.
Recall from the discussion at the beginning of Part IV that community corrections
includes both alternatives to confinement (e.g., diversion, probation) and programs for
offenders released from correctional institutions (e.g., parole), as well as a variety of
intermediate sanctions and restorative justice initiatives.
The large majority of offenders who are found guilty are not sent to correctional
institutions but rather are given a non-custodial sanction to be completed in the community. The then federal Conservative government (2006-15) enacted legislation
that restricted the use of several alternative measures, although subsequent court
decisions have found some of these to be a violation of the Charter of Rights and
Freedoms. A quick review of the sentencing options set out in Table 9.1 reveals a variety
of sanctions that do not involve incarceration. These include absolute discharges,
conditional discharges, suspended sentences, conditional sentences, and probation.
A quick summary of "who's who" in non-carceral and carceral corrections in Canada
can be seen in Table 10.1.
Figure 10.1 presents a breakdown of the admissions to adult correctional services
by type of supervision and by jurisdiction (federal and provincial/territorial). ote that
approximately 23 percent of all offenders are in some type of custody, while 77 percent
are under some form of community supervision.
Figure 10.2 presents a breakdown of offenders under the jurisdiction of
Correctional Service Canada (CSC ). ote that a majority of federal offenders are
in custody (61.9 percent), while just over 30 percent are under active supervision
in the community.
The following sections discuss the variety of sentencing options that result in
convicted persons not being sent to a correctional institution.
TABLE 10.1
THE "WHO" OF NON-CARCERAL AND CARCERAL CORRECTIONS
m·•
--
'j;
L. ~
·•·'-
, •••-
~
-.q.,.:,!,•,
7
Judges
Judges
I
Probationers
Inmates
I
NGOs (e.g., John Howard Society, Elizabeth Fry
Society)
Superintendents and wardens
Community counsellors/treatment professionals
Correctional officers; institutional parole
officers
Indigenous friendship centres
Spiritual advisers (e.g., chaplains, Indigenous
Elders)
Community volunteers
Native prison liaison workers
Offender's family
Citizen Advisory Committees
Parole board members
Treatment professionals
Parolees
Community volunteers
Federal offenders on statutory release
Offender's family
I
'
I
I
I
Parole officers
Halfway house staff
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I
CHAPTER 1 O: Corrections in the Community: Alternatives to Confinement
287
• FIGURE 10.1
• Provincial/ferritorial Custody
• Remand
• Federal Custody
• Other Temporary Custody (immigration holds,
•
•
parole violations/suspensions, etc.)
Probation
Conditional Sentences
Other Community Supervision (provincial parolees in
Quebec and Ontario, fine option programs, etc.)
Admissions to Adult Correctional
Services, by Type of Supervision
and Jurisdiction, 2015-16
Source: J. Reitano. 2017. "Adult Correctional
Statistics in Canada, 2015/2016," Juris/at, 37(1 ).
Statistics Canada Catalogue no. 85-002-X. Ottawa:
Minister of Industry, p. 15. http://www.statcan.gc
.ca/pub/85-002-x/2017001 /article/14700-eng.pdf.
1.48%
• FIGURE 10.2
Total Offender Population
Temporarily Detained 3.5%
Actively Supervised 34.6%
Day Parole 5.8%
Full Parole 14.3%
Statutory Release 12.9%
Offenders under the Responsibility
of the CSC, 2015
Source: Public Safety Canada Portfolio Corrections
Statistics Committee. 2016. Corrections and
Conditional Release Statistical Overview: 2015
Annual Report. Ottawa: Public Works and
Government Services Canada, p. 33. https://www
.publicsafety.gc.ca/cnt/rsrcs/pblctns/ccrso-2015/
ccrso-2015-en.pdf. This information was
reproduced with the permission of the Minister
of. Public Safety and Emergency Preparedness
Canada, 2017.
Long-Term Supervision
Orders 1.6%
ABSOLUTE AND CONDITIONAL DISCHARGES
Section 730(1) of the Criminal Code (R.S.C. 1985, c. C-46) states that the presiding
judge may discharge an offender in cases where an accused person either pleads
guilty or is found guilty for an offence other than one for which there is a mandatory
minimum penalty or the offence is punishable by a term of imprisonment for a period
of 14 years to li fe. ote that although the person is found guilty, he or she is not
"convicted," meaning that the offence will not be permanently on the person's record.
In R. v. MacFarlane ( 1976 ALTASCAD 6), the court stated that discharges should
only be used in exceptional circumstances. The standard that is used in determining
the appropriateness of a discharge is tl1at it would be "in the best interests of the accused
and not contrary to the public interest." The "best interests of the accused" was defined
by the court in Regina v. Sanchez-Pino (1973 11 CCC (2d) 5 3 (0 CA) at p. 59) as
being "a good person of good character, or at least of such character that the entry
of a conviction against him may have significant repercussions." And if allowing tl1e
conviction to remain on the offender's record would "have a prejudicial impact on the
accused disproportionate to the offence committed." 1 The "public interest" has been
defined by the courts as whether any benefit would accrue if the community would
benefit by knowing of the person's criminal activity. 2
Absolute discharges are discharges without conditions, while conditional discharges have conditions attached to them, including to keep tl1e peace and be of good
288
Part IV: Corrections
NEL
behaviour, to appear before the court when requested, to report to a probation officer,
to seek and maintain employment, and others. If the offender fails to comply with these
and any other specific conditions, which may include abstaining from the use of drugs
or alcohol, the offender can be returned to court and the conditional discharge may
be cancelled. In such cases, a more severe sentence may be imposed. The courts have
established that conditional discharges can even be used where a violent offence has
been committed (R. v. Knowlton, 2005 ABPC 29).
SUSPENDED SENTENCE
Convicted offenders who receive a suspended sentence are provided with the opportunity
to avoid incarceration by abiding by conditions of a probation order for a period from one
to three years. Upon completion of the period of supervision, the offender will have a
criminal record (which distinguishes suspended sentences from a conditional discharge).
FINES
Fine option programs provide an opporhmity for offenders to pay off their fines by
working on various community service projects. Fines can be levied alone or in conjunction with another sanction such as probation or even incarceration (in which case
it doesn't serve as an alternative to confinement).
The Supreme Court of Canada (SCC) has ruled (R. v. Wu, 2003 SCC 73 ) that an
offender is not to be imprisoned for the non-payment of a fine where there is a genuine
inability to pay. The court held that poverty is a reasonable excuse for non-payment of a
fine. The court further held that imprisonment is only appropriate where the offender
has demonstrated a refusal to pay without reasonable excuse and that persons should be
given a reasonable time to pay and to do so by participating in a fine options program.
All provinces and territories except Ontario, ewfoundland and Labrador, and
British Columbia have fine option programs. These programs provide an opportunity
for offenders to work off their fines by earning credits for working, unpaid, for various
community groups and organizations. Offenders in some jurisdictions can also pay off
the victim fine surcharge by participating in a fine options program. 3
Due to fiscal restraints, the government of Saskatchewan announced in 2017 that,
with exceptions for those offenders who were truly destitute, offenders would not be
allowed to work off their fines but must pay in cash. The government noted that only
44 percent of offenders worked the agreed-upon hours to pay off their fines. 4
DIVERSION PROGRAMS
Diversion
Programs that are designed to keep
offenders from being processed further
into the formal criminal justice system.
NEL
Diversion programs have been a feature of Canadian criminal justice for decades.
Offenders can be diverted from the formal criminal justice process at several pointsthere are diversion programs at the pre-charge, post-charge, and post-sentencing. The
problem-solving courts discussed in Chapter 7 are designed to divert offenders with
special needs from the traditional court system. There are also many diversion programs
for youth offenders, and these are discussed in Chapter 13.
Generally speaking, the objective of all diversion programs is to keep offenders from
being processed further into the formal criminal justice system and , in so doing, to
reduce costs, minimize social stigmatization, and assist offenders in addressing the specific factors related to their offending. Most diversion programs require that offenders
acknowledge responsibility for their behaviour and agree to fulfill certain conditions
CHAPTER 10: Corrections in the Community: Alternatives to Confinement
289
with in a specified time. This may include attending an alcohol or drug treatment program, completing a number of community service hours, or other requirem.ents. If
these conditions are successfully met, the charges are withdrawn and the person does
not have a criminal record.
Traditional diversion programs are focused on low-risk, first-time offenders, although
cases involving more serious offences have been referred to diversion programs.
VICTIM-OFFENDER MEDIATION
Many diversion programs are centred on the principles of restorative justice. Victimoffender mediation (VOM) programs (often referred to as victim-offender reconciliation [VOR] programs) take a restorative approach in which the victim and the offender
are provided with the opporhmity to express their feelings and concerns. With the help
of a neutral mediator, the offender and the victim resolve the conflict, address the
consequences of the offence, and, ultimately, come to understand each other. In recent
years, VOM and VOR programs have been extended to cases involving crimes of
violence and have included incarcerated offenders.
Restorative justice approaches that provide an opportunity for the victim to meet
face-to-face with the offender receive high marks from crime victims and have a positive
impact on the psychological and physical health of crime victims. A study (N = 34) of
victims of violent crime in Canada and Belgium who participated in victim-offender
mediation, family group conferencing, or victim-offender encounters found high
levels of victim satisfaction. 5 These were ascribed to the perception that the process was
procedurally just, was flexible, provided care, and was empowering. These views existed
regardless of the outcome of the intervention.
A number of these types of programs operate in First ations communities. One is
profiled in Corrections File 10.1.
CORRECTIONS FILE 10.1
THE MIIKANAAKE COMMUNITY (ONTARIO) JUSTICE PROGRAM
The Miikanaake Commuity Justice Program
>/
is a pre- and post-charge diversion program
for youth and adult Indigenous offenders who j
reside in Simcoe County in southern Ontario. u
Referrals may come from the police at the
pre-charge stage, or from Crown counsel
~
after the person has been charged. Offenders i
are diverted from the criminal justice system 3
.~
and referred to a community council, which
"§i
is composed of members of the community.
The council works with the offender to address the underlying causes of the offender's ~
behaviour in order to facilitate reintegration
~
back into the community. Among the options ~
8
available to the council are counselling,
Miikanaake Community Justice program
requiring the offender to pay restitution, and
recommending treatment or community service. Upon successful
phase, the Crown may stay or withdraw the charges upon successful
completion of an agreed-upon plan, persons who have been referred
completion of the agreed-upon plan.
to the program at the pre-charge phase will not be charged by the
Source: Breaking Trail: Miikanaake Community Justice Program. http://enaahtig.ca/
police; for those persons referred to the program at the post-charge
Program%20Brochures/Miikanaake%20Community%20Justice%20Program.pdl.
i
J
290
Part IV: Corrections
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THE ISSUE OF NET-WIDENING
Net-widening
A potential, unanticipated consequence
of diversion programs in which persons
who would otherwise have been released
outright by the police or not charged by
Crown counsel are involved in the justice
system.
A major concern with diversion programs is net-widening-a situation wherein persons who would otherwise have been released outright by the police or not charged by
Crown counsel are involved in the justice system.
There are also concerns that diversion programs can be coercive and punitive.
Also, there is some ambiguity surrounding the notion of "choice" in the operations
of diversion programs and whether diversion programs may infringe on the rights of
accused persons.
Although there are no recent Canadian studies, research in the U.S. suggests
that diversion programs can be an effective strategy and reduce the seriousness and
frequenc y of reoffending.6.7 The factors associated with successful outcomes for
offenders involved in diversion programs include stable employment and a supportive environment. 8
CONDITIONAL SENTENCES
Section 742 of the Criminal Code states that a convicted person who would otherwise
be incarcerated for less than two yea rs can be sentenced to a conditional term of imprisonment, to be served in the community rather than in custody. The offender is required
to fulfill certain conditions of a probation order, although the offender is not on probation. Failure to comply with the conditions of a conditional sentence order (C SO)
results in the offender being returned to court, where the sentencing judge has a variety
of options, including sending the offender to prison. Offenders on CSOs are supervised
in the community by probation officers, even though they are not on probation. See
Table 10. 3 for a comparison of CS Os and probation.
In its ruling in R. v. Proulx (2000 SCC 5), the SCC directed that two factors be taken
into account in determining whether a conditional sentence is appropriate : (1) the risk
that the offender will reoffend, and (2) the amount of harm the offender would cause
in the event of offending again.
All CSOs contain standard, compulsory conditions that are similar to those contained in probation orders. Optional conditions may also be set down and may be added
to or reduced by the court over time. These may include abstaining from alcohol or
drugs, providing for the support or care of dependents, performing community service
work, and/or attending a treatment program.
on-compliance with the conditions of a CSO can result in the offender being
incarcerated . If an allegation is made that a condition has been breached, the offender
may have to appear in court to prove that the allegation is false. This is a reverse onus
situation; in other words, it is up to the offender to prove that the breach did not occur.
The Safe Streets and Communities Act (S.C. 2012, c. 1) prevents judges from
imposing a conditional sentence in cases where the offender has been convicted of
an offence involving bodily harm, drug trafficking, or the use of a weapon (along with
a variety of other offences in which the Crown had proceeded by indichnent). As of
late 2017, it remains to be seen whether these restrictions on the use of conditional
sentences will be overturned by the courts.
Offenders who are given a CSO and placed under house arrest are often viewed by
the media and the general public as having received a "slap on the wrist" and as having
escaped the negative experiences of incarceration. Yet adhering to a CSO's requirements, which may include 24-hour house arrest, presents challenges for offenders that
may be no less intense than those of incarceration. In interviews, offenders on CSOs
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mention the negative impact on their working lives and on those who are close to them,
including their children. 9
CSOs have been surrounded by controversy since their inception in 1996. While
popular with judges, concerns have been raised about high violation rates and, initially,
the use of CSOs by judges for offenders who had committed crimes of violence. These
concerns prompted the then federal Conservative government to restrict the use of
CSOs for certain offences. This may have resulted in a decrease in the use of CSOs; in
British Columbia, the number of persons supervised on CSOs declined by nearly onehalf between 2011 and 2015 .1O
Although the use of CSOs has been credited with contributing to the reduction
of prison populations, there is variability among the provinces and territories in their
use. However, although CSOs could serve to reduce the high numbers of Indigenous
offenders in prison, research has found that only in the provinces of Quebec and
Ontario has there been an elevated use of this sentencing option. In the remaining
jurisdictions, non-Indigenous offenders are most likely to be the beneficiaries of this
alternative to incarceration. 11
PROBATION
Section 731 of the Criminal Code provides that in cases in which no minimum penalty
is prescribed, the sentencing judge may place the offender on probation for a period of
up to three years. Probation is the most frequently used strategy for supervising offenders
in the community as an alternative to incarceration, although it is used in conjunction
with other sanctions as well. See Table 10.2.
The proportion of offenders who receive a sentence of probation has remained in
the 43 to 45 percent range in recent years . 12 Probation is popular largely because it is
so versatile. The specific conditions of a probation order can be tailored to the risk and
needs of the offender and may include the requirement that the probationer attend
specialized programs.
A probation order will contain compulsory conditions as set out in section 732.1 (2)
of the Criminal Code. These include the requirement that the probationer "keep the
peace and be of good behaviour," to "appear before the court when required to do so,"
and to notify the court or supervising probation officer of any change in employment
status, residence, and so on.
In addition, the probation order may contain optional conditions that are tailored
to the offender's specific circumstances and, under section 732 .1 (3) of the Criminal
TABLE 10.2
Optional conditions
Conditions attached to offenders who
are supervised in the community that
are tailored to their specific risk and
needs.
THE USES OF PROBATION
Adult offenders can be on probation under the following scenarios:
• as part of a conditional discharge (mandatory)
• as a condition of a suspended sentence (mandatory)
• as part of an intermittent sentence (mandatory)
• as a sentence on its own (the most common)
• following a prison term of two years or less
• in conjunction with a conditional sentence
• as a federal offender who received a sentence of exactly two years (little known)
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Code, include not possessing, owning, or carrying a firearm; performing up to 240 hours
of community service over a period not exceeding 18 months; remaining wi thin the
jurisdjction of the court unless written permission is recei ved from the court or supervising probation officer; and, with the agreement of the probationer, participating in an
approved treatment program .
Additional conditions can include the requirement that the probationer provide restitution to the victim; restrictions on whom the probationer can contact; travel restrictions, including "red-zone, no-go areas"; and the requirement that the offender attend
alcohol and/or drug counselling.
Offenders who fail to comply with the conditions of their probation order can be
found guilty of an indjctable offence and imprisoned for not more than four yea rs, or
found guilty of a summary conviction offence, subject to incarceration for not more
than 18 months, and a fine, or both. In reality, few offenders who violate the conditions
of their probation suffer these consequences .
PROBATION AND CONDITIONAL SENTENCES:
WHAT'S THE DIFFERENCE?
Although conditional sentences and probation might appear to be indistinguishable,
there are significant differences between the two. These are set out in Table 10.3.
PROBATION VERSUS PAROLE: WHAT'S THE DIFFERENCE?
Probation and parole both involve an offender being supervised in the community.
However, there are considerable differences between them. These are set out in
Table 10.4.
TABLE 10.3
-
PROBATION VERSUS CONDITIONAL SENTENCES
;;'-,}It .Bit li;\·
-
I
CGnllllonal Senllnce
Imposed by a criminal court judge
Imposed by a criminal court judge
Designed as an alternative to custody, although may be used
in conjunction with a period of incarceration in a provincial or
territorial jail
Designed for offenders who would be custody-bound but allows offenders to
serve period of custody in the community, generally under house arrest
Can be imposed for any type of offence
Cannot be used when the offender has been convicted of a crime that carries a
mandatory minimum penalty and for certain offences, including drug trafficking ,
offences causing body harm, and use of a weapon
Used for offenders receiving a sentence of less than two years
Used for offenders receiving a sentence of less than two years
Maximum length is three years
Maximum length must be less than two years
Objective is rehabilitation
Objective is rehabilitation and punishment (R. v. Wu, 2003 sec 73).
Supervision by probation officers
Supervision by probation officers, although the offender is not on probation
Offender must abide by certain conditions
Offender must abide by certain conditions
Breach of conditions may result in offender being returned to
court where additional conditions may be imposed
Breach of conditions may result in offender being sent to jail
The offender on probation must consent to treatment (R. v. Rogers
(1991 ), 2 CR (4th) 192 (BCCA))
The offender must attend any treatment program ordered by the court
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TABLE 10.4
PROBATION VERSUS PAROLE: WHAT'S THE DIFFERENCE?
rProbation
1
1
Parole
Imposed by a criminal court judge
Granted by an administrative tribunal (a parole board)
Available only for provincial/territorial offenders (except
federal offenders who received a sentence or sentences
totalling exactly two years)
Available to federal and provincial/territorial offenders
Maximum length is three years
Continues until warrant expiry date (end of sentence)
May be used in conjunction with a period of confinement in
a provincial/territorial institution (and following a sentence
of exactly two years in a federal correctional facility)
A form of conditional release from confinement in a provincial/territorial/federal
correctional facility
Requires offender to abide by general conditions (e.g.,
obey the law and keep the peace) and perhaps specific
conditions tailored to the offender's individual risk factors
(e.g., abstain from alcohol)
Requires offender to abide by general and perhaps also specific c